THE  POSTAL  POWER  OF  CONGRESS 

! 

A  STUDY  IN   CONSTITUTIONAL  EXPANSION 

UC-NRLF 


BY 
LINDSAY  ROGERS 


A  DISSERTATION 

Submitted  to  the  Board  of  University  Stu  ' '  -s  of  The  Johns 
Hopkins  University  in  Conlorrr  ty  \viih  <!-\T?equirements 
for  the  degree  of  Dc:tor  o:  :  l.iiDSop. 
1915 


BALTIMORL 
1916 


THE  POSTAL  POWER  OF  CONGRESS 


THE  POSTAL  POWER  OF  CONGRESS 

A  STUDY  IN   CONSTITUTIONAL  EXPANSION 


BY 
LINDSAY  ROGERS 


A  DISSERTATION 

Submitted  to  the  Board  of  University  Studies  of  The  Johns 

Hopkins  University  in  Conformity  with  the  Requirements 

for  the  degree  of  Doctor  of  Philosophy 

1915 


BALTIMORE 
1916 


COPYRIGHT  1916  BY 
THE  JOHNS  HOPKINS  PRESS 


PRESS  OF 

THE  MEW  ERA  PRINTING  COMPANY 
LANCASTER,  PA. 


CONTENTS 

PACK 

PREFACE vii 

CHAPTER        I.     Introductory :  The  Antecedents  of  the 

Power 9 

CHAPTER      II.     The  Power  of  Congress  to  Establish 

Postoffices    26 

Expansion  of  Facilities 26 

Collectivist  Activities 33 

Postal  Crimes  36 

Fraud  Orders  56 

CHAPTER    III.     The  Power  of  Congress  to  Establish 

Postroads 61 

Legislative  Action   61 

Judicial  Determinations 80 

CHAPTER    IV.     Limitations  on  the  Postal  Power 97 

Freedom  of  the  Press 98 

Unreasonable  Searches  and  Seiz- 
ures      123 

CHAPTER      V.     The  Power  of  the  States  to  Interfere 

with  the  Mails 127 

CHAPTER    VI.     The  Extension  of  Federal  Control  Over 

Postroads 150 

Federal  Ownership  of  Railroads  150 
Postal  Telegraphs  and  Telephones  156 
CHAPTER  VII.     The    Extension    of    Federal    Control 

Through  Exclusion  From  the  Mails  158 


346622 


PREFACE 

The  purpose  of  this  essay  is  to  trace  the  legislative  and 
judicial  history  of  the  grant  to  Congress  of  the  power  "  to 
establish  postoffices  and  postroads,"  and  to  discuss  the  con- 
stitutionality of  the  proposals  that,  under  this  clause,  federal 
control  may  be  extended  to  subjects  over  which  Congress 
has  no  direct  authority.  The  essay  is  thus  one  in  constitu- 
tional expansion,  and  does  not  consider  the  history  or  effi- 
ciency of  the  postoffice  as  an  administrative  arm  of  the 
government.  A  treatment  of  this  subject,  which  has  as  yet 
received  scant  notice,  I  may  some  day  attempt. 

Portions  of  Chapters  IV  and  VII  have  appeared  as 
articles  on  "  Federal  Interference  with  the  Freedom  of  the 
Press,"  and  "The  Extension  of  Federal  Control  through 
the  Regulation  of  the  Mails,"  in  the  Yale  Law  Journal 
(May,  1914)  and  the  Harvard  Law  Review  (November, 
1913)  respectively.  They  have  been  thoroughly  revised  for 
publication  in  their  present  form.  Chapter  V  appeared  in 
substantially  the  same  form  in  the  Virginia  Law  Review 
(November,  1915). 

I  am  under  great  obligations  to  Professor  W.  W.  Wil- 
loughby,  not  only  for  much  direct  assistance  in  the  prepara- 
tion of  this  essay,  but  for  the  inspiration  of  his  productive 
scholarship. 

L.  R. 


VII 


THE  POSTAL  POWER  OF  CONGRESS 


CHAPTER   I 
INTRODUCTORY:  THE  ANTECEDENTS  OF  THE  POWER 

It  is,  perhaps,  not  insignificant  that  The  Federalist  con- 
tains but  a  single  reference  to  the  power  lodged  in  Congress 
"to  establish  postoffices  and  postroads."  The  writers  of 
that  incomparable  collection  of  political  papers  which  dis- 
cussed in  such  exhaustive  detail  the  disputed  points  of  the 
proposed  governmental  frame-work  for  the  United  States 
of  America,  hardly  needed  to  argue  that  the  proposed  dele- 
gation could  not  be  deemed  dangerous  and  was  admittedly 
one  of  national  concern.  "  The  power  of  establishing  post- 
roads,"  said  Madison,  "  must,  in  every  view,  be  a  harmless 
power,  and  may,  perhaps,  by  judicious  management,  become 
productive  of  great  public  conveniency.  Nothing  which 
tends  to  facilitate  the  intercourse  between  the  states  can  be 
deemed  unworthy  of  the  public  care."1 

Half  a  century  later,  Story  prefaced  the  discussion  of  this 
power  in  his  Commentaries,  with  the  remark  that,  "One 
cannot  but  feel,  at  the  present  time,  an  inclination  to  smile 
at  the  guarded  caution  of  these  expressions,  and  the  hesitat- 
ing avowal  of  the  importance  of  the  power.  It  affords, 
perhaps,  one  of  the  most  striking  proofs,  how  much  the 
growth  and  prosperity  of  the  country  have  outstripped 
the  most  sanguine  anticipations  of  our  most  enlightened 
patriots."2 

At  the  time  Story  wrote,  the  postal  power  had,  of  course, 
already  achieved  a  "commercial,  political,  intellectual  and 

1  The  Federalist,  No.  42. 

2  Story,  Commentaries  on  the  Constitution,  vol.  iii,  p.  22. 


IO  THE   POSTAL   POWER   OF   CONGRESS 

private"  importance,  "of  incalculable  value  to  the  perma- 
nent interests  of  the  Union,"  vital  both  to  the  government 
and  to  individuals.  But  there  was  also  the  problem,  lately 
acute,  as  to  whether  Congress  had  simply  the  power  "to 
designate,  or  point  out,  what  roads  shall  be  mail  roads,  and 
the  right  of  passage  or  way  along  them  when  so  designated," 
or  the  larger  power  "  to  construct  any  roads  which  Congress 
may  deem  proper  for  the  conveyance  of  the  mail,  and  to 
keep  them  in  due  repair  for  such  purpose."3  The  remark- 
able benefits  already  achieved  and  the  disputed  extensions 
were  the  developments  which  excited  Story's  surprise  at  the 
unprophetic  remark  of  The  Federalist. 

But  for  some  time  the  postoffice  has  been  a  common 
carrier  and  is  now  supplanting  the  express  companies ;  it 
exercises  banking  functions  not  only  for  facilitating  ex- 
change but  for  savings  deposits,  and  other  collectivist  activi- 
ties are  most  strongly  urged.  The  Supreme  Court  of  the 
United  States  has  upheld  a  broad  power  in  Congress  to 
prevent  and  punish  interference  with  the  carriage  of  the 
mails,  and  it  is  thus  possible  to  make  further  extensions  of 
federal  authority.*  The  right  to  incorporate  railways  and 
build  postroads  is  firmly  established,  and  assertions  are  made 
that  it  is  both  competent  and  advisable  for  federal  authority 
to  assume  control  of  the  telephone  and  telegraph  systems 
and  perhaps  the  railways  themselves.  It  is,  finally,  argued 
that  Congress  may  solve  problems  of  purely  local  origin,  and 
of  primary  sectional  concern,  through  the  simple  expedient 
of  denying  the  use  of  the  mails  unless  certain  regulative 
conditions  are  complied  with.  Viewing  these  extensions  as 
either  definitely  upheld  by  the  Supreme  Court,  or  seriously 
urged,  one  cannot  now  but  smile  at  the  "  guarded  caution  " 
of  Story's  description  and  his  "hesitating  avowal"  that 
postroads  might,  with  certain  restrictions,  be  constructed 
under  federal  auspices.  The  distinguished  jurist,  however, 
wrote  more  prophetically  than  he  knew,  when  he  empha- 

3  Story,  Commentaries  on  the  Constitution,  vol.  iii,  p.  26. 
*  In  Re  Debs,  158  U.  S.  564  (1895). 


THE   ANTECEDENTS   OF   THE   POWER  I  I 

sized  the  importance  of  this  power,  "both  theoretically  and 
practically." 

Yet  it  is  not  unnatural  that  at  the  time  the  Constitution 
was  framed,  the  importance  of  the  postal  power  should  have 
been  inadequately  estimated,  since,  inherently,  it  must  be 
conditioned  by  the  existing  mechanical  means  of  intercourse 
and  communication.  It  seemed  that  the  nation  would  be 
sufficiently  fortunate  were  it  to  be  born  with  promise  of 
maintaining  existence,  and  it  was  neither  possible  nor  ad- 
visable to  scrutinize  its  powers  of  which  future  necessity  or 
expediency  might  require  an  extension  for  the  purposes  of 
the  nation.  And,  moreover,  the  growth  of  postal  facilities, 
from  their  first  manifestation  up  to  the  adoption  of  the  Con- 
stitution was  not  sufficiently  pronounced  to  augur  a  great 
deal  for  the  future.  Travel  and  intercourse  were  extremely 
difficult ;  and  the  cognate  questions  were  to  come  only  with 
the  development  of  society. 

The  maintenance  of  postal  facilities  has  always  been  a 
recognized  function  of  the  state,  and  this  was  true  even  in 
early  Rome.  In  England,  the  sixteenth  century  saw  the 
first  definite  steps  for  the  establishment  of  a  service,  but 
even  before  this  communications  were  carried  by  royal 
messengers  compensated  by  the  Crown.  Private  posts 
were,  of  course,  used,  but  official  letters  on  state  matters 
constituted  so  large  a  bulk  of  the  correspondence  and  the 
problem  was  one  so  fitted  for  solution  by  the  state  that  it 
was  inevitable  that  the  postal  establishment  should  be  con- 
ducted under  the  auspices  of,  and  supported  directly  by  the 
government.5 

In  the  American  colonies  the  first  attempt  to  establish  a 
mail  service  was  made  in  1639  by  the  General  Court  of 
Massachusetts.  "  For  preventing  the  miscarriage  of  letters, 
...  It  is  ordered  that  notice  bee  given,  that  Richard  Fair- 
banks, his  house  in  Boston,  is  the  place  appointed  for  all 
letters,  which  are  brought  from  beyond  the  seas,  or  are  to 
bee  sent  thither ;  .  .  .  are  to  bee  brought  to  him  and  hee  is  to 

5  Hemmeon,  The  History  of  the  British  Post  Office,  p.  3  ff. 


12  THE   POSTAL   POWER   OF   CONGRESS 

take  care,  that  they  bee  delivered  or  sent  according  to  their 
directions  and  hee  is  allowed  for  every  such  letter  id.  and 
must  answer  for  all  miscarriages  through  his  owne  neglect 
in  this  kind;  provided  no  man  shall  bee  compelled  to  bring 
his  letters  thither  except  hee  please."  So  runs  the  entry  in 
the  court  records.6 

This,  however,  applied  only  to  foreign  mail,  and  it  was 
not  until  December,  1672  that  there  was  an  effort  to  estab- 
lish a  domestic  post,  Francis  Lovelace,  governor  of  New 
York,  taking  the  initiative,  and  his  messenger  going  to  Con- 
necticut. Soon  afterwards  the  General  Court  of  Massa- 
chusetts appointed  a  postmaster  and  a  proclamation  was 
issued  by  the  home  government  calling  for  the  establish- 
ment of  postoffices  at  convenient  places  on  the  American 
continent.7 

The  office  of  postmaster  general  for  America  was  created 
in  1692,  permission  being  granted  Thomas  Neale  and  his 
executors  by  the  Lords  of  Trade  and  Plantations  to  estab- 
lish "an  office  or  offices  for  the  receiving  and  dispatching 
letters  and  pacquets,  and  to  receive,  send  and  deliver  the 
same  under  such  rates  and  sums  as  the  planters  shall  agree 
to  give."8 

The  next  forty  years  saw  some  extensions  of  postal  facili- 
ties, but  the  improvement  was  slight.  In  1683  William 
Penn  established  a  postoffice  in  Pennsylvania,  and  in  1736 
a  weekly  mail  was  begun  between  Boston  and  New  York, 
but  intercolonial  communication  was  very  restricted,  and  it 
was  not  until  1737,  with  the  appointment  of  Benjamin 
Franklin  as  postmaster  general  at  Philadelphia  and  post- 
master general  of  the  Colonies  in  1753  that  there  were  any 
noticeable  gains,  or  any  signs  of  important  developments 


6  Mass.  Historical  Collections,  3d  Series,  vol.  vii,  p.  48 ;  quoted  by 
Mary  E.  Wooley  in  her  monograph  on  "  Early  History  of  the  Colo- 
nial Post  Office,"  Publications  of  the  Rhode  Island  Historical  So- 
ciety, New  Series,  vol.  i,  p.  270  ff. 

7  Hemmeon,  p.  32;  Joyce,  The  History  of  the  Post  Office  from  its 
Establishment  down  to  1836,  p.  196. 

8  Wooley,  Early  History  of  the  Colonial  Post  Office,  p.  275 ;  Hem- 
meon, p.  33.     See  also  Pliny  Miles,  "History  of  the  Post  Office," 
American  Bankers'  Magazine,  n.  s.,  vol.  vii,  p.  358  (November,  1857). 


THE   ANTECEDENTS    OF   THE   POWER  13 

for  the  state  function  of  which  he  was  placed  in  charge. 
Franklin  was  active  in  establishing  new  posts  as  far  as  was 
possible  and  began  the  practice  of  sending  newspapers 
through  the  mails  free  of  charge.  When  he  was  turned  out 
of  office  in  1774,  he  wrote  that  "  before  I  was  displaced  by  a 
freak  of  the  ministers,  we  had  brought  it  [the  postoffice]  to 
yield  three  times  as  much  clear  revenue  to  the  crown  as  the 
postoffice  in  Ireland.  Since  that  impudent  transaction  they 
have  received  from  it  not  one  farthing."9 

After  Franklin's  dismissal  the  new  postmaster  at  Phila- 
delphia raised  the  rates  on  newspapers  to  such  proportions 
that  William  Goddard,  an  editor  of  Baltimore  and  Phila- 
delphia, was  forced  to  discontinue  the  publication  of  his 
journal.  In  March,  1774  Goddard  began  a  lengthy  journey 
through  the  New  England  States  to  gain  support  for  the 
"  Constitutional  American  Post  Office "  which  he  hoped  to 
establish.10  A  tentative  line  was  inaugurated  between 
Baltimore  and  Philadelphia,  but  this  was  gradually  extended 
so  as  to  provide  tolerably  adequate  facilities  for  all  of  the 
colonies,  Goddard  having  secured  the  support  of  the  as- 
semblies in  New  Hampshire,  Massachusetts,  Rhode  Island, 
New  Jersey,  and  New  York.11  He  realized  from  the  first 
that  the  facilities  he  was  seeking  should  be  furnished  under 
the  auspices  of  the  Continental  Congress,  and  when  this 
body  acted  on  July  26,  1775  and  agreed  to  the  establishment 
of  a  post,  Goddard's  plans  were  accepted.12 

The  establishment  of  postal  facilities  was  one  of  the  very 
first  problems  taken  up  by  the  Continental  Congress  when 
it  began  to  exercise  sovereign  powers  which  it  did  not 
legally  possess,  but  which  of  necessity  it  had  to  assume. 
On  May  29,  1775  the  Congress  resolved  that,  "As  the 
present  critical  situation  of  the  colonies  renders  it  highly 
desirable  that  ways  and  means  should  be  devised  for  the 
speedy  and  secure  conveyance  of  Intelligence  from  one  end 


9  Miles,  p.  361. 

10  American  Archives,  Fourth  Series,  vol.  i,  pp.  500-504. 

11  Ibid.,  vol.  ii,  p.  536  ff. 


530  H 
Ed.), 


12  See  Jameson  (Ed.),  Essays  in  Constitutional  History,  p.  168  ff. 


14  THE   POSTAL   POWER   OF   CONGRESS 

of  the  Continent  to  the  other,"  a  committee  be  appointed  to 
consider  the  best  means  of  establishing  a  post,13  and  on  July 
26,  1775  the  Congress  took  up  the  committee's  report,  ap- 
pointed Benjamin  Franklin  postmaster  general  for  the 
United  Colonies,  established  a  line  of  communication  from 
Falmouth  to  Savannah  and  recommended  the  inauguration 
of  cross  posts  within  the  discretion  of  the  postmaster  gen- 
eral.14 Franking  privileges  were  almost  immediately  estab- 
lished for  the  members  of  Congress  and  for  the  army  com- 
manders, and  were  later  extended,  with  some  limitations,  to 
private  soldiers  in  the  service.15 

As  yet  the  Congress  had  not  aimed  to  make  its  postal 
establishment  a  monopoly  and  so  it  was  a  question  of  war 
policy  rather  than  of  the  unrestricted  exercise  of  a  govern- 
mental function  which  inspired  the  motion  that  the  parlia- 
mentary posts  be  stopped.  Richard  Henry  Lee,  for  ex- 
ample, argued  that  "the  Ministry  are  mutilating  our  cor- 
respondence in  England,  and  our  enemies  here  are  cor- 
responding for  our  ruin ; "  but  the  better  opinion  prevailed 
that  the  measure  was  an  offensive  one  not  proper  at  that 
particular  juncture.  In  fact  the  ministerial  post  had  been 
of  service  to  the  colonists  in  giving  them  information  which 
they  could  not  otherwise  have  obtained,  and  so  it  was  recom- 
mended that  the  people  use  the  constitutional  establishment 
as  much  as  possible.  Before  the  end  of  the  year,  as  it 
turned  out,  this  problem  was  settled  without  the  interven- 
tion of  Congress  for  the  British  postoffice  stopped  its  ser- 
vice in  the  colonies.16 

13  Journals  of  the  Continental  Congress  (edited  by  Ford),  ii,  p.  71. 
(References  up  to  1781  are  to  this  edition,  Washington,  1904  .  .  . 
Since  the  sixteenth  volume,  the  editor  has  been  Gaillard  Hunt.) 
Ibid.,  vol.  ii,  p.  208. 
Ibid.,  vol.  iii,  p.  342 ;  vol.  iv,  p.  43. 

16  Ibid.,  vol.  iii,  p.  488.  In  the  discussion  referred  to  Paine  re- 
marked that  the  "  ministerial  post  will  die  a  natural  death ;  it  has 
been  under  a  languishment  a  great  while ;  it  would  be  cowardice  to 
issue  a  decree  to  kill  that  which  is  dying;  it  brought  but  one  letter 
last  time  and  was  obliged  to  retail  newspapers  to  pay  its  expenses." 
Lee  was  more  facetious,  saying :  "  Is  there  not  a  Doctor,  Lord  North, 
who  can  keep  this  creature  alive?"  On  December  25,  1775,  it  was 
announced  that  incoming  mail  would  not  be  sent  to  the  various 
colonies  but  would  be  held  in  New  York  and  advertised. 


THE   ANTECEDENTS   OF  THE   POWER  15 

During  the  war  the  adequacy  of  the  postal  facilities  was 
often  before  Congress.  Committees  were  appointed  to  in- 
vestigate conditions ;  Congress  by  resolution  appreciated  the 
fact  that  the  "  communication  of  intelligence  with  frequency 
and  despatch  from  one  part  to  another  of  this  extensive 
continent,  is  essentially  requisite  to  its  safety."  The  post- 
master general  was  therefore  requested  to  exercise  care  in 
the  selection  of  riders  and  to  discharge  dilatory  ones  when 
discovered.  Deputy  postmasters  were  excused  "  from  those 
public  duties  which  may  call  them  from  attendance  at  their 
offices ; "  admonitory  resolutions  directed  ferry  keepers  to 
expedite  the  passage  of  postriders,  and  a  public  monopoly 
was  aimed  at  through  the  indirect  method  of  reducing  the 
wages  of  government  messengers  who  carried  private 
packages.17 

On  November  7,  1 776,  Richard  Bache  was  appointed  post- 
master general  vice  Franklin  who  had  gone  on  the  mission 
to  France,  and  after  this  change  the  attempts  of  Congress 
to  improve  the  service  seem  to  be  more  frequent.18  In 
January  of  the  next  year,  Bache  was  requested  to  furnish  a 
list  of  those  in  the  service,  it  having  been  reported  that 
"  persons  disaffected  to  the  American  cause  "  had  been  em- 
ployed "with  the  most  mischievous  effects"  and  he  was 
further  requested  to  "assign  reasons  why  the  late  resolves 
of  Congress  for  regulating  the  postoffice  are  not  carried  into 
execution."19  In  February  a  committee  was  appointed  to 
revise  the  regulations ;  it  recommended  extensions  and  sug- 
gested that  all  employees  be  required  to  take  an  "oath  of 
fidelity  to  the  United  States  and  also  an  oath  of  office,"  and 
urged  that  once  in  six  months  the  postmaster  general  be 
required  to  transmit  to  Congress  a  list  of  those  in  the 
service.20  The  legislatures  of  the  states  were  asked  to 
exempt  from  all  military  duties  "  persons  immediately  con- 

17  Journals  of  the  Continental  Congress,  vol.  v,  pp.  719,  720;  vi, 
p.  926. 

1  Ibid.,  vol.  vi,  p.  931. 

19  Ibid.,  vol.  vii,  p.  29. 

20  Ibid.,  p.  153. 


1 6  THE   POSTAL   POWER   OF   CONGRESS 

cerned  in  conducting  the  business  of  the  postoffice,"  but  still 
the  establishment  did  not  work  to  the  satisfaction  of  Con- 
gress, and  other  committees  were  appointed  to  make  recom- 
mendations and  the  rates  of  postage  were  several  times  in- 
creased. One  new  step  was  taken  when  an  inspector  of 
dead  letters  was  appointed  to  "  examine  all  dead  letters  at 
the  expiration  of  each  quarter ;  to  communicate  to  Congress 
such  letters  as  contain  inimical  schemes  or  intelligence;  to 
preserve  carefully  all  money,  loan  office  certificates,  lottery 
tickets,  notes  of  hand,  and  other  valuable  papers  enclosed 
in  any  of  them,  and  be  accountable"  for  their  safekeeping, 
subject  to  the  restriction  that  he  take  "  no  copy  of  any  letter 
whatever,"  and  refuse  "  to  divulge  their  contents  to  any  but 
Congress  or  those  whom  they  may  appoint  for  the  pur- 
pose."21 

Meanwhile  the  Articles  of  Confederation  had  been  agreed 
upon  and  submitted  to  the  states.  There  was  no  objection 
to  a  grant  of  the  postal  power,  but  the  terms  in  which  it 
was  made  limited  its  extent.  Part  of  Article  XVIII  in  the 
first  draft  gave  the  United  States  "the  sole  and  exclusive 
right  and  power  of  ...  establishing  and  regulating  post- 
offices  throughout  all  the  United  Colonies,  on  lines  of  com- 
munication from  one  colony  to  another,"  and  later  on  in 
the  same  article,  it  was  provided  that  the  United  States 
"  shall  never  impose  or  levy  any  taxes  or  duties  except  in 
managing  the  postoffice."22  In  the  second  draft,  the  grant 
was  made  more  limited ;  it  gave  Congress  "  the  sole  and  ex- 
clusive right  and  power  ...  of  establishing  and  regulating 
postoffices  from  one  state  to  another  throughout  all  the 
United  States  and  exacting  such  postage  on  the  papers  pass- 
ing through  the  same  as  may  be  requisite  to  defray  the 
expenses  of  said  office."  In  this  form  the  clause  became 
part  of  the  Articles  of  Confederation  as  adopted  by  the 
states,28  and  there  was  no  further  discussion  of  the  power, 


21  Journals  of  the  Continental  Congress,  vol.  vii,  pp.  258,  347 ;  ix, 
816,  817,  898;  xi,  550. 
!  Ibid.,  vol.  v,  p.  551. 

21  Ibid.,  pp.  681,  682;  ix,  907.     In  the  second  draft  the  postal  clause 
comes  under  Article  14  and  in  the  final  draft  under  Article  9. 


THE    ANTECEDENTS    OF   THE   POWER  I/ 

negative  action  being  taken  on  the  motion  of  the  Pennsyl- 
vania delegates  (June  25,  1778)  "that  such  part  of  the  9th 
article  as  respects  the  postoffice,  be  altered  or  amended  so 
as  that  Congress  be  obliged  to  lay  the  accounts  annually 
before  the  legislatures  of  the  several  states."24 

The  Articles  of  Confederation  gave  the  limited  power  of 
establishing  and  regulating  postoffices  "  from  one  state  to 
another."  Thus,  intrastate  postal  facilities  were  beyond 
the  purview  of  Congress ;  nothing  was  said,  moreover, 
about  the  establishment  of  postroads,  or  the  opening  up  of 
new  routes,  and  the  sole  power  of  taxation  granted  to  Con- 
gress was  confined  to  an  amount  sufficient  to  defray  the 
expenses  of  the  system.  Nevertheless,  the  inadequacy  of 
the  grant  was  theoretical  rather  than  real,  since  Congress 
was  so  occupied  with  other  more  pressing  affairs,  that  it  was 
content  with  a  limited  communication  of  intelligence,  desir- 
ing solely  that  this  be  as  speedy  and  secure  as  possible. 

From  this  time  on  references  to  the  postal  establishment 
in  the  congressional  journals  are  of  frequent  occurrence; 
additional  investigating  committees  were  established  and 
the  personnel  of  the  standing  committee  was  changed.  Ex- 
penses grew  apace  while  the  revenues  diminished  and  this 
called  for  measures  of  retrenchment.  A  resolution  of  De- 
cember 27,  1779,  contained  the  regulation  that  "the  post 
shall  set  out  and  arrive  at  the  place  where  Congress  shall  be 
sitting  twice  in  every  week,"  and  it  was  at  the  same  time 
urged  that  "the  whole  expensive  system  of  express  riding 
be  totally  abolished  except  by  the  particular  order  of  Con- 
gress upon  very  special  occasions."25 

On  October  18,  1782,  under  the  power  granted  by  the 
Articles  of  Confederation,  there  was  passed  "  An  Ordinance 
for  Regulating  the  Post-Office  of  the  United  States  of 
America."  For  the  period  it  was  a  most  elaborate  statute 
and  marks  the  birth  of  a  real  postal  establishment.  Of  such 


24  Journals  of  the  Continental  Congress,  vol.  xi,  p.  652.     The  vote 
stood,  Ayes,  2;  Noes,  9. 

25  Ibid.,  vol.  xv,  p.  1411. 
2 


1 8  THE   POSTAL   POWER   OF   CONGRESS 

comprehensiveness  was  the  act  that  when,  ten  years  later, 
Congress  passed  legislation  under  the  authority  delegated 
by  the  Constitution,  the  Ordinance  was  merely  amplified. 
Its  preamble  recited : 

"  Whereas  the  communication  of  intelligence  with  regu- 
larity and  dispatch  from  one  part  to  another  of  these  United 
States  is  essentially  requisite  to  the  safety  as  well  as  the 
commercial  interest  thereof ;  and  the  United  States  in  Con- 
gress assembled  being  by  the  Articles  of  Confederation 
vested  with  the  sole  and  exclusive  right  and  power  of  estab- 
lishing and  regulating  postoffices  throughout  all  these  United 
States;  and  whereas  it  is  become  necessary  to  revise  the 
several  regulations  heretofore  made  relating  to  the  postoffice 
and  reduce  to  one  act : 

"Be  it  therefore  ordained  by  the  United  States  in  Con- 
gress assembled,  and  it  is  hereby  ordained  by  the  authority 
of  the  same,  that  a  continued  communication  of  posts 
throughout  these  United  States  shall  be  established  and 
maintained  by  and  under  the  direction  of  the  postmaster 
general  of  these  United  States  to  extend  to  and  from  the 
state  of  New  Hampshire  to  the  state  of  Georgia  inclusive, 
and  to  and  from  such  other  parts  of  the  United  States  as 
from  time  to  time  he  shall  judge  necessary  or  Congress 
shall  direct."26 

The  duties  of  the  postmaster  general  were  "  to  superintend 
and  direct  the  postoffice  in  all  its  various  departments  and 
services  .  .  .  agreeably  to  the  rules  and  regulations  "  of  the 
ordinance.  He  was  given  the  power  to  appoint  an  assistant 
and  deputies,  for  whom  he  should  be  responsible ;  to  station 
them,  and  to  fix  their  commissions,  with  a  maximum  limit 
of  20  per  cent,  on  money  "to  arise  from  postage  in  their 
respective  departments."  He  was  given  the  further  power 
of  appointing  postriders,  messengers  and  expresses. 

In  this  ordinance,  moreover,  Congress  attempted  to  lay 
down  certain  regulations,  infraction  of  which  would  be 
punishable,  although  not  criminally  or  in  an  efficient  manner. 
All  persons  in  the  service  were  forbidden  knowingly  or 

26  7  Journals  of  Congress  (Ed.  of  1800),  383. 


THE  ANTECEDENTS   OF  THE   POWER  IQ 

wilfully  "to  open,  detain,  delay,  secrete,  embezzle,  or  de- 
stroy, or  cause,  procure,  permit,  or  suffer  to  be  opened, 
detained,  delayed,  secreted,  embezzled  or  destroyed,  any 
letter  or  letters,  packet  or  packets,  or  other  dispatch  or  dis- 
patches, which  shall  come  into  his  power,  hands,  or  custody, 
by  reason  of  his  employment  in,  or  relation  to,  the  post- 
office,  except  by  the  consent  of  the  person  or  persons  by  or 
to  whom  the  same  shall  be  delivered  or  directed,  or  by  an 
express  warrant  under  the  hand  of  the  president  of  the 
Congress  of  these  United  States  or  in  time  of  war,  of  the 
commander  in  chief  of  the  armies  of  these  United  States, 
or  of  the  chief  executive  officer  of  one  of  the  said  states, 
for  that  purpose,  or  except  in  such  other  cases  wherein  he 
shall  be  authorized  to  do  so  by  this  ordinance." 

All  persons  in  the  postal  service  were  required,  antecedent 
to  their  employment,  to  take  an  oath  promising  to  carry  out 
and  obey  these  meticulous  provisions  to  safeguard  the  mails, 
but  the  method  of  enforcement  was  ineffective.  Congress 
provided  that  "  if  the  postmaster  general  shall  be  guilty  of 
the  said  oath  or  affirmation  or  any  part  thereof,  and  be 
thereof  convict,  he  shall  forfeit  and  pay  1,000  dollars  in  an 
action  of  debt  in  the  state  where  the  offense  shall  be  com- 
mitted, by  the  treasurer  of  the  United  States  for  the  time 
being."  The  penalty  for  other  employees  was  $300,  but  all 
were  "rendered  incapable  ever  hereafter  of  holding  any 
office  or  place  of  trust  or  profit  under  these  United  States."27 
In  order  to  make  probable  a  higher  degree  of  efficiency 
and  to  insure  adequate  revenues,  the  Congress  attempted  to 
make  and  enforce  a  monopoly.  The  Ordinance  specified 
that  the  postmaster  and  his  assistants,  but  "  no  other  person 
whatsoever  shall  have  the  receiving,  taking  up,  ordering, 
dispatching  .  .  .  carrying  and  delivering  of  any  letters, 
packets  or  other  dispatches,  from  any  place  within  these 
United  States  for  hire,  reward,  or  other  profit  or  advantage 
.  .  .  and  any  such  person  or  persons  presuming  to  do  so, 

27  7  Journals,  383  ff.  Special  messengers  and  expresses  were  ex- 
empted from  this  provision  at  the  discretion  of  the  postmaster 
general. 


2O  THE   POSTAL   POWER   OF   CONGRESS 

shall  forfeit  and  pay  for  every  such  offense,  20  dollars,  to 
be  sued  for  and  recovered  in  an  action  of  debt  with  costs  of 
the  suit."  Persons  on  private  missions  were  exempted  and 
private  cross  posts  could  be  established  with  the  approval 
of  the  postmaster  general.  By  the  ordinance  rates  were 
fixed  and  special  provisions  were  made  for  newspapers 
which  were  to  be  carried  "at  such  moderate  rates  as  the 
postmaster  general  shall  establish."  The  franking  privi- 
lege, finally,  was  extended  to  the  officials  at  Washington 
and  single  letters  could  be  sent  without  postage  to  officers 
of  the  line  in  actual  service;  by  early  amendments  to  the 
ordinance  there  were  further  extensions,  Washington  was 
relieved  of  paying  postage  and  allowance  was  made  for 
ministers  at  foreign  courts.28 

The  incompleteness  of  the  national  control  over  the  post- 
office  and  in  particular  the  inadequacy  of  the  device  that 
really  criminal  offenses  should  be  punished  by  civil  suits, 
were  shown  in  January,  1784  when  Congress  considered  a 
robbery  which  had  taken  place  at  Princeton.  The  mail  had 
been  carried  off  and  some  days  later  was  found  in  a  meadow, 
several  letters  having  been  lost  and  several  more,  franked 
by  members  of  Congress,  having  been  broken  open.  The 
"  supreme  executive  of  the  state  of  New  Jersey "  was  re- 
quested to  undertake  an  investigation  to  discover  those 
guilty,  but  when  his  reply  exculpated  the  Princeton  post- 
master "  from  every  suspicion  of  collusion  or  fraud "  the 
inquiry  was  dropped.  Congress  could  proceed  no  further.29 

Another  incident  showing  general  acceptance  of  the  fact 
that  the  regulation  of  the  mails  and  the  punishment  of 
offenses  against  them  should  be  under  plenary  national 
control,  occurred  a  few  months  later  and  was  considered  by 
the  Committee  of  the  States  during  a  recess  of  Congress. 
An  investigating  committee  reported  that  an  advertisement 
of  French  packet  boats  was  "an  open  avowal  of  an  inten- 
tion to  contravene  an  ordinance  of  Congress  for  regulating 

28  8  Journals,  40,  131,  193 ;  9  Journals,  130. 

29  9  Journals,  15,  147. 


THE   ANTECEDENTS    OF   THE   POWER  21 

the  postoffice  of  these  United  States ;  and  that  the  measures 
therein  mentioned  .  .  .  are  a  flagrant  violation  of  the  same 
ordinance  .  .  .  will  greatly  injure  the  revenue  of  the  post- 
office,  and,  if  not  prevented,  may  defeat  that  useful  institu- 
tion." The  Committee  of  the  States  agreed  to  the  report  and 
directed  that  if  the  postmaster  general  should  determine 
that  the  ordinance  had  been  violated,  he  should  cause  the 
prosecution  of  the  offenders  according  to  law,  namely,  make 
them  defendants  in  actions  of  debt  for  the  penalties  pro- 
vided by  the  ordinance.30 

On  September  4,  the  postmaster  general  was  given  au- 
thority to  contract  for  the  conveyance  of  the  mails  by  stage 
carriages,  if  practicable,  for  one  year,  but  on  the  part  of 
some  of  the  states  considerable  opposition  developed.  A 
motion  was  made  to  construe  the  words  "if  practicable"  as 
not  binding  the  postoffice  "to  form  the  contract  for  the 
transportation  of  the  mail  on  terms  inconvenient  to  the 
mercantile  interest,  or  to  comply  with  the  extravagant  de- 
mands of  the  contractors,"  but  the  vote  was  in  the  negative 
and  a  second  attempt  to  modify  the  original  instruction  was 
also  unsuccessful.31  The  later  motion  showed  a  disposition 
on  the  part  of  the  states  to  desire  flexible  national  regula- 
tions, which  would  not  necessarily  be  uniform,  but  would 
be  adapted  to  local  needs.  The  resolution  recited  that  in 
respect  to  the  states  of  New  Jersey,  Pennsylvania,  Dela- 
ware, Maryland  and  Virginia,  the  mails  might  "be  carried 
upon  more  reasonable  and  convenient  terms  should  the  post- 
master general  be  left  at  liberty  to  contract  for  the  same 
either  by  stage  carriages  or  postriders,  as  shall  appear  to 
him  most  conducive  to  the  public  interest. 

"And  whereas  the  intention  of  Congress  in  having  the 
mail  transported  by  stage  carriages  was  not  only  to  render 
their  conveyance  more  certain  and  secure,  but  by  encourag- 
ing the  establishment  of  stages  to  make  intercourse  between 
different  parts  of  the  union  less  difficult  and  expensive  than 


30  9  Journals  (App.),  10. 

31  II  Journals,  154,  191. 


22  THE   POSTAL   POWER   OF   CONGRESS 

formerly;  and  as  a  discretionary  power  in  the  postmaster 
general  either  to  employ  postriders  or  contract  with  the 
owners  of  stage  carriages  for  conveying  the  mail  in  the 
states  of  North  Carolina,  South  Carolina,  and  Georgia 
might  interfere  with  the  object  of  promoting  and  establish- 
ing the  running  of  stages  in  said  states,  Resolved,  that  so 
far  as  respects  these  states  it  is  improper  to  alter  the  post- 
master general's  present  instructions."32  Thus  very  early 
attempts  were  made  to  secure  special  local  facilities. 

During  this  period,  however,  subsequent  to  the  ordinance 
of  1782,  Congress  took  no  important  action  in  regard  to  the 
postoffice.  It  annually  gave  the  postmaster  general  author- 
ity to  contract  for  the  succeeding  year,  and  to  encourage  the 
useful  institution  of  the  postoffice  when  it  could  be  done 
without  material  injury  to  the  public.33  In  the  enforcement 
of  federal  regulations,  as  has  been  said,  the  government  was 
limited  by  having  to  sue  in  actions  of  debt,  and  so  it  was  a 
foregone  conclusion  that  the  postal  power,  inadequately 
vested  in  Congress  under  the  Articles  of  Confederation, 
would  be  one  of  the  grants  contained  in  the  Constitution. 
The  Pinckney  plan  as  it  was  submitted  to  the  Committee  of 
Detail,  mentioned  "  establishing  Post-Offices  "  as  one  of  the 
exclusive  powers  of  "the  Senate  and  House  of  Delegates 
in  Congress  assembled."34  Pinckney's  original  draft  out- 
lined the  power  as  that  "of  establishing  Post-Offices  and 
raising  a  revenue  from  them."35 

In  the  Convention  Mr.  Paterson  on  June  15,  1787  sug- 

32  Congress  approved  the  action  of  the  postmaster  general  in  direct- 
ing his  deputies  not  to  receive  the  paper  money  of  any  state  for 
postage,  and  to  accept  only  specie.    He  was  also  authorized  to  de- 
mand payment  in  advance,     n  Journals,  84,  164. 

33  12  Journals,  137. 

34  Farrand,  Records  of  the  Federal  Convention,  vol.  ii,  p.  135. 

35  This  is  the  draft  as  reconstructed  by  Professor  Farrand  (vol. 
iii,  pp.  604,  607),  but  the  document  sent  by  Pinckney  in  1819  to  John 

?uincy  Adams  for  publication  in  the  journal,  omitted  the  last  clause, 
his  draft,  however,  was  written  not  very  long  before  1819,  and  was 
not  presented  to  the  Convention  in  1787.  See  Records,  vol.  iii,  p. 
595  ff;  "Sketch  of  Pinckney's  Plan  for  a  Constitution,  1787,"  in 
American  Historical  Review,  vol.  ix,  p.  735,  and  Bancroft,  History 
of  the  Constitution,  vol.  i,  p.  258. 


THE   ANTECEDENTS   OF   THE   POWER  23 

gested  "  that  in  addition  to  the  power  vested  in  the  United 
States  by  the  existing  articles  of  Confederation,  they  be 
authorized  to  pass  acts  for  raising  a  revenue,  ...  by  a  post- 
age on  all  letters  and  packages  passing  through  the  general 
postoffice,  to  be  applied  to  such  federal  purposes  as  they 
shall  deem  proper  and  expedient."36  The  report  of  the 
Committee  of  Detail  was  made  to  the  Convention  on  August 
6  and  provided  (Art.  VII)  that  "The  Legislature  of  the 
United  States  shall  have  the  power  ...  to  establish  post- 
offices."37 

Ten  days  later,  the  Committee's  report  being  under  con- 
sideration it  was  proposed  that  the  words  "  and  postroads  " 
be  added.  This  was  carried  by  a  close  vote,  though  it  is 
difficult  to  attribute  the  opposition  to  any  source  other  than 
a  general  fear  of  giving  the  federal  government  too  much 
power  and  thus  endangering  the  chances  for  adoption.38 
To  this  feeling  also,  may  be  ascribed  the  result  that,  when, 
later,  some  urged  the  insertion  of  an  additional  grant  "to 
regulate  stages  on  the  post  roads,"  the  proposal  was  not 
reported  from  the  Committee  of  Detail.39  Such  a  power 
has,  however,  been  fully  exercised. 

The  report  of  the  Committee  of  Style,  made  on  September 
12,  fixed  the  grant  as  that  "  to  establish  postoffices  and  post- 
roads,"  this  being  the  form  in  which  it  became  a  part  of  the 
Constitution.40  Dr.  Franklin,  however,  advocated  that 
there  be  added  "  a  power  to  provide  for  cutting  canals  where 
deemed  necessary."41  The  motion  was  seconded,  but  Mr. 
Sherman  started  the  opposition  by  objecting  on  the  ground 
that  the  "  expense  in  such  cases  will  fall  on  the  United 
States  and  the  benefits  accrue  to  the  places  where  the  canals 
may  be  cut."  Mr.  Wilson,  on  the  contrary,  argued  that 

36  Farrand,  vol.  i,  p.  243. 
87  Ibid.,  vol.  ii,  p.  177. 

38  Ibid.,  p.  303.     New  Hampshire,  Connecticut,  New  Jersey,  Penn- 
sylvania and  North  Carolina  were  opposed.    Rhode  Island  and  New 
York  did  not  vote.    The  other  states  were  in  favor. 

39  Ibid.,  p.  324. 

40  Constitution,  Art.  I,  Sec.  8,  Clause  7 ;  Farrand,  vol.  ii,  p.  590. 

41  Farrand,  vol.  ii,  p.  615. 


24  THE   POSTAL   POWER   OF   CONGRESS 

instead  of  being  an  expense  to  the  United  States,  the  canals 
might  be  made  a  source  of  revenue,  and  Madison  wanted 
"an  enlargement  of  the  motion  into  a  power  to  grant 
charters  of  incorporation  where  the  interest  of  the  United 
States  might  require,  and  the  legislative  provisions  of  the 
individual  states  might  be  incompetent.  His  primary  object, 
however,  was  to  secure  an  easy  communication  between  the 
states  which  the  free  intercourse,  now  to  be  opened,  seemed 
to  call  for.  The  political  obstacles  being  removed,  a  re- 
moval of  the  natural  ones  as  far  as  possible  ought  to  fol- 
low."42 The  question,  however,  was  limited  to  the  single 
case  of  canals,  and  when  put  to  a  vote  was  defeated,  because 
there  was  an  antipathy  to  monopolies,43  and  because,  as 
Gouverneur  Morris  admitted,  "  It  was  extremely  doubtful 
whether  the  Constitution  they  were  framing  could  ever  be 
passed  at  all  by  the  people  of  America;  that  to  give  it  its 
best  chance,  however,  they  should  make  it  as  palatable  as 
possible,  and  put  nothing  into  it,  not  very  essential,  which 
might  raise  up  enemies."44 

This  history  of  the  postal  clause  in  the  Federal  Convention 
offers  little  of  interpretative  importance.  The  intent  of  the 
framers  is  sufficiently  clear,  although,  as  pointed  out  by  one 
commentator,  the  delegation  is  clothed  in  words  which 


t2  Farrand,  vol.  ii,  p.  615. 

43  The  vote  on  the  motion  was  8  to  3  (New  Hampshire,  Connecti- 
cut, Massachusetts,  New  Jersey,  Delaware,  Maryland,  North  Caro- 
lina, and  South  Carolina  opposed;  Pennsylvania,  Virginia,  Georgia 
in  favor).    This  incident  in  the  Federal  Convention  was  to  figure  in 
the  congressional  debates  over  the  incorporation  of  banks  and  the 
construction  of  postroads.     Opinions  have  differed  as  to  whether  the 
action  of  the  Convention  may  be  said  to  show  that  the  Constitution 
did  not  contemplate  the  exercise  by  Congress  of  a  power  to  incor- 
porate.    Madison's  record  says  :  "Mr.  King  thought  the  power  unnec- 
essary. .  .  .  Mr.  Wilson  mentioned  the  importance  of   facilitating 
by  canals  the  communication  with  the  Western  Settlements.    As  to 
Banks,  he  did  not  think  with  Mr.  King  that  the  power  in  that  point 
of  view  would  excite  the  prejudices  and  parties  apprehended.    As  to 
mercantile  monopolies,  they  are  already  included  in  the  power  to 
regulate  trade."    Farrand,  vol.  iii,  p.  615.     Madison's  later  opinion 
(1824)  was  that  a  general  power  to  incorporate  had  been  negatived. 
Ibid.,  p.  463. 

44  Jefferson's  Anas  in  T.  J.  Randolph,  Memoir,  Correspondence 
...  of  Thomas  Jefferson,  vol.  iv,  p.  506. 


THE   ANTECEDENTS    OF   THE   POWER  25 

"poorly  express  its  object"  and  "feebly  indicate  the  par- 
ticular measures  which  may  be  adopted  to  carry  out  its 
design.  To  establish  post  offices  and  post  roads  is  the  form 
of  the  grant ;  to  create  and  regulate  the  entire  postal  system 
of  the  Government  is  the  evident  intent."45 

It  is  possible  partially  to  explain  the  specific  negativing  of 
the  power  to  cut  canals  on  the  ground  that  there  was  no 
limitation  to  those  cases  in  which  the  construction  would 
have  been  an  aid  to  interstate  commerce  or  the  transporta- 
tion of  the  mails.  Under  the  amendment  as  proposed  Con- 
gress would  have  had  the  authority  to  cut  a  waterway 
wholly  within  a  state  for  purely  intra-state  purposes.46  As 
a  matter  of  fact,  however,  this  power,  which  later  was  to 
give  rise  to  considerable  controversy,  has  been  exercised  by 
the  federal  government  under  its  authority  to  regulate  inter- 
state commerce  and  establish  postroads,  just  as  the  postal 
grant  itself  has  been  extended  to  cover  fields,  neither  exist- 
ing nor  within  the  range  of  possibility  when  the  Constitution 
was  adopted. 

In  the  state  conventions  there  was  practically  no  discus- 
sion of  the  postal  power.  Its  innocuousness  was  granted. 
Mr.  Jones  of  New  York  was  alone  in  finding  a  latent  ag- 
gression, and  it  was  resolved,  as  the  opinion  of  the  state 
committee,  "that  the  power  of  Congress  to  establish  post- 
offices  and  postroads  is  not  to  be  construed  to  extend  to  the 
laying  out,  making,  altering,  or  repairing  highways,  in  any 
state,  without  the  consent  of  the  legislature  of  such  state."47 
Such  a  stipulation  was  destined  very  soon  to  become  a  mere 
brutum  fulmen.48 


45  Pomeroy,  Constitutional  Law,  p.  264. 

48  See  Brown,  The  Commercial  Power  of  Congress,  p.  132. 

47  Elliot's  Debates,  vol.  ii,  p.  406. 

48  See  Moore,  American  Eloquence,  vol.  i,  p.  349. 


CHAPTER   II 
THE  POWER  OF  CONGRESS  TO  ESTABLISH  POSTOFFICES 

Expansion  of  Facilities. — "  Our  whole  economic,  social 
and  political  system,"  says  President  Hadley,  "has  become 
so  dependent  upon  free  and  secure  postal  communication, 
that  the  attempt  to  measure  its  specific  effects  can  be  little 
less  than  a  waste  of  words."1  This  is  hardly  an  overstate- 
ment of  the  case,  yet,  as  we  have  seen,  the  importance  of  the 
postal  function  was  recognized  before  the  Constitution  was 
adopted  and  when  it  comprehended  only  the  transmission  of 
intelligence.  The  increased  importance,  however,  has  been 
absolute  as  well  as  relative,  since  through  the  postoffice  the 
government  now  does  much  more  than  merely  facilitate 
communication  between  its  citizens. 

An  act  for  the  temporary  establishment  of  the  postoffice 
was  passed  by  Congress  on  September  22,  ifSy.2  It  pro- 
vided for  the  appointment  of  a  postmaster  general,  all  the 
details  and  regulations  to  be  as  they  "  were  under  the  resolu- 
tions and  ordinances  of  the  late  Congress.  The  postmaster 
general  to  be  subject  to  the  direction  of  the  president  of  the 
United  States,  in  performing  the  duties  of  his  office,  and  in 
forming  contracts  for  the  transportation  of  the  mail."3 

For  a  considerable  period  congressional  and  administra- 
tive efforts  were  devoted  almost  exclusively  to  the  extension 
of  facilities;  postoffices  were  established  as  rapidly  as  pos- 
sible ;  every  effort  was  made  to  secure  speedy  transportation 
of  the  mail,  to  insure  its  security,  to  prevent  private  competi- 

1Art,  "Postoffice,"  Lalor,  Cyclopaedia  of  Political  Science,  vol. 
iii,  p.  310. 

2  i  Stat  L.  70. 

3  This  act  was  limited  to  August  12,  1790.     On  August  4  1790,  it 
was  continued  until  March  4,  1791 ;  on  March  3  until  February  20, 
1792,  when  Congress  passed  "  An  Act  to  establish  the  postoffice  and 
postroads  in  the  United  States."    I  Stat.  L.  178,  218,  232. 

26 


POWER  OF  CONGRESS  TO  ESTABLISH   POSTOFFICES         2/ 

tion,  and  by  means  of  an  increasingly  efficient  system  to  weld 
together  distant  parts  of  the  country.  The  communications 
of  the  postmasters  general  are  devoted  to  recommendations 
for  the  improvement  of  the  service;4  presidential  messages 
take  pride  in  reporting  the  growth  of  the  establishment, 
which  was  rapid.  In  1790  there  were  about  100  postoffices 
in  the  country;  the  receipts  from  October,  1790  to  October, 
1791  were  $31,706.27  and  the  disbursements  left  a  balance 

of  $5,498.5 i.B 

But  in  1823  Monroe  was  able  to  report  to  Congress  that 
88,600  miles  of  postroads  had  been  established  by  law  and 
that  the  mail  was  transported  over  85,700  miles  of  this  total.6 
During  the  two  years  from  July  I,  1823  the  increase  of  the 
transportation  of  the  mail  exceeded  1,500,000  miles  annually 
and  1,040  new  postoffices  were  established.7  In  1828  the 
total  mileage  was  114,536  as  compared  with  5,642  in  1792 
and  in  1837  was  I42J^77  miles.8  The  receipts  from  postage 
for  the  year  ending  March  31,  1828  were  $1,058,204.34. 
These  figures  serve,  in  some  measure  at  least,  to  indicate  the 
rapid  expansion  of  the  postal  system.9 

At  the  same  time  there  was  a  commensurate  recognition 
of  the  importance  of  the  establishment  in  the  attitude  of 
Congress  and  the  executive  in  dealing  with  it  as  an  admin- 
istrative arm  of  the  federal  government.  The  act  of  1810 
referred  to  the  "  postoffice  establishment " ;  an  incidental 
use  of  the  word  "  department "  is  to  be  found  in  the  laws  of 

4  For  example,  Gideon  Granger,  postmaster  general,  wrote  in  1810 : 
"  From  the  nature  of  our  government  it  becomes  a  matter  of  the 
highest  importance  to  furnish  the  citizens  with  full  and  correct  infor- 
mation, and,  independent  of  political  considerations,  the  interests  of 
society  will  be  best  promoted,  particularly  in  the  interior,  by  extend- 
ing to  it  the  facilities  of  this  office.      Nor  can  the  seaboard  complain  as 
it  puts  a  profit  on  all  that  the  interior  produces  for  exportation,  and 
on  all  it  consumes  from  foreign  countries."    American  State  Papers 
(Postoffice),  vol.  xv,  p.  42. 

5  Williams,  The  American  Postoffice,  p.  20  (6ist  Congress,  2d  Sess., 
Sen.  Doc.  No.  542). 

6  Richardson,  Messages  and  Papers  of  the  Presidents,  vol.  ii,  p.  215. 

7  Ibid.,  p.  311. 

8  Ibid.,  p.  419. 

9  Williams,  p.  25. 


28  THE   POSTAL   POWER   OF   CONGRESS 

1799  and  i8io,10  but  the  system  became  an  executive  depart- 
ment in  1872  when  Congress,  codifying  the  postal  laws, 
passed  an  act  under  which  the  department  is  now  organ- 
ized.11 In  1827  the  postmaster  general's  salary  was  in- 
creased to  $6,000  per  annum,  and  he  was  thus  placed  on  an 
equality  with  cabinet  officers ;  two  years  later  Jackson  made 
him  a  member  of  his  official  family.12 

Later  in  this  essay  will  be  found  a  consideration  of  the  use 
made  by  Congress  of  the  postroads  clause,13  in  the  assump- 
tion of  authority  to  aid  in  works  of  internal  improvement, 
but  here  some  mention  should  be  made  of  the  connection 
which  has  existed  between  the  desire  for  a  speedy  trans- 
portation of  the  mail  and  aid  granted  to  railroads.  This 
aid  took  the  form  of  donations,  with  mail  service  free  or  at 
reasonable  rates,  loans  to  companies,  and  general  contracts 
for  service,  with  the  purpose  of  giving  aid  as  well  as  paying 
compensation.1*  In  debating  the  desirability  of  govern- 
mental stock  subscriptions  in  transportation  undertakings 
Congress  often  adverted  to  the  carriage  of  the  mails ;  and  in 
1834  it  was  proposed  to  give  the  Baltimore  and  Ohio  Rail- 
road Company  $320,000  in  return  for  which  the  mail  was  to 
be  carried  free  forever.15  Similar  suggestions  were  made 
from  time  to  time,  but  there  was  little  definite  action,  and 
in  1845  the  postmaster  general  was  authorized  to  contract 
for  the  transportation  of  the  mail  by  railroads,  without  in- 
viting bids.18 

Since   1850  the  postoffice  has  not  been  used,   at  least 

10  2  Stat.  L.  592,  and  I  Stat.  L.  733. 

11  Learned,  The  President's  Cabinet,  p.  231.     See  also  U.  S.  v.  Ken- 
dall, 5  Cranch  (U.  S.  C.  C,  1837),  275. 

12  Bassett,  Life  of  Andrew  Jackson,  vol.  ii,  p.  413.     "...  in  intro- 
ducing the  postmaster  general  into  the  cabinet,  Jackson  began   a 
practice  that  probably  tended,  in  the  long  run,  to  invigorate  the 
workings  of  the  postal  establishment,  notwithstanding  the  fact  that 
Barry,   successor  to   McLean   in  the  office,   made  a  conspicuously 
dismal  record."     Learned,  p.  250. 

13  Below,  Chapter  III. 

14  See  Haney,  Congressional  History  of  Railways,  p.  319  (Bulletin 
of  the  University  of  Wisconsin :  Economic  and  Political   Scienc* 
Series,  vol.  iii). 

15  10  Congressional  Debates,  1752. 

16  Haney,  p.  323. 


POWER  OF  CONGRESS  TO  ESTABLISH    POSTOFFICES          29 

avowedly,  to  aid  railways ;  the  period  has  rather  been  one  of 
regulation.  Disputes  have  arisen  over  the  proper  compen- 
sation for  service  rendered,  and  companies  have  refused  to 
give  facilities  for  transportation.17  It  was  proposed,  there- 
fore, that  the  roads  be  forced  to  carry  the  mails,  and  in 
1870  an  act  to  this  effect  was  applied  in  the  District  of 
Columbia,  compensation  to  be  determined  by  three  commis- 
sioners. But  in  i872,18  the  codification  of  the  postal  laws 
provided  rates  for  service,  with  compulsory  service  by  the 
roads  which  had  received  land  grants;  if  the  companies 
were  not  satisfied  with  the  amounts  fixed  by  Congress, 
letters  were  to  be  forwarded  by  horse,  and  the  articles  for 
which  expedition  was  not  required,  were  to  be  sent  by 
stage.19  At  present  compensation  is  determined  by  an 
elaborate  system,  under  maximum  rates  fixed  by  Congress. 
The  postmaster  general  may  make  reductions  for  refusal  to 
transport,  when  required,  upon  the  fastest  trains,20  and  may 
impose  fines  for  inefficient  service  and  delays.21  The  neces- 
sity has  not  arisen,  but  if  the  railways  should  refuse  to  carry 
the  mails,  on  the  ground  of  inadequate  compensation,  Con- 
gress would  have  the  right  to  compel  transportation,  upon 
reasonable  compensation  for  the  taking  of  private  property 
for  public  use.22 

This,  however,  is  only  one  phase  of  the  financial  problem 
of  the  postoffice;  another,  very  important  phase  involves  the 
cost  to  patrons.  Rates  for  the  transmission  of  letters  re- 
mained practically  unaltered  until  1845,  while  the  charges 
for  newspapers  were  slightly  changed  in  the  direction  of 
allowing  the  publishers  special  privileges.  The  act  of 
1845"  exercised  a  broad  authority  of  classification,  separat- 

1T  48th  Cong.,  2d  Sess.,  Sen.  Exec.  Doc.  No.  40. 
18  16  Stat  L.  115;  17  Stat.  L.  309. 

19Haney,  p.  206  (Bulletin  of  the  University  of  Wisconsin:  Eco- 
nomic and  Political  Science  Series,  vol.  vi). 

20  23  Stat.  L.  156. 

21  See  Postal  Laws  and  Regulations  of  1913,  Title  X,  "  Transpor- 
tation of  the  Mails,"  p.  607  ff. 

22  See  43d   Cong.,    ist  Sess.,   Sen.   Rep.   No.  478.    This  point  is 
developed  below,  p.  151  ff. 

«  5  Stat.  L.  733- 


3O  THE   POSTAL   POWER   OF   CONGRESS 

ing  the  mail  in  order  to  expedite  it,  and  introducing  the  free 
privilege  for  newspapers  not  more  than  1,900  square  inches 
in  size,  distributed  within  30  miles  of  the  place  of  printing. 
The  act  of  i84724  allowed  free  exchanges  only  between  pub- 
lishers, and  following  this  statute  many  changes  were  made, 
both  in  the  conditions  of  exemption  from  postage  and  the 
rates  which  were  charged.  The  classification  now  obtain- 
ing was  adopted  in  i879,25  and  the  cent  a  pound  rate  for 
periodical  matter  admitted  to  "  second  class  "  privileges  was 
fixed  in  i885.26 

But  while  concessions  were  made  to  encourage  the  circula- 
tion of  newspapers,  Congress  maintained  rigid  restrictions  in 
respect  to  the  size  of  the  packages  that  could  be  carried  in 
the  mails.  The  limit  was  three,  and  later  four  pounds. 
This  was  originally  due  to  the  fact  that  large  packages  could 
not  be  handled  with  convenience  by  the  system  and  were 
likely  to  injure  or  deface  other  mail  matter.  But  when 
federal  facilities  became  sufficient  to  take  off,  or  at  least 
raise,  the  weight  limit,  the  express  companies,  which  at  this 
time  were  beginning  to  derive  a  large  revenue  from  carrying 
parcels,  were  able  to  postpone  congressional  action  until 
August  24,  IQI227  when  the  Parcels  Post  Act  was  passed 
after  it  had  been  repeatedly  recommended  by  postmasters 
general  and  long  desired  by  public  opinion.28  Such  delay 
has,  of  course,  not  been  without  bitter  criticism,29  and  in 

24  9  Stat.  L.  202. 
25 10  Stat  L.  38. 

26  23  Stat.  L.  387.     For  further  details  of  the  special  privileges 
granted  periodicals,  see  Report  of  the  Commission  on  Second  Class 
Mail  Matter  (1912),  p.  57  ff. 

27  37  Stat  L.  557.     "  That  hereafter  fourth  class  mail  matter  shall 
embrace  all  other  matter,  not  now  embraced  by  law,  in  either  the 
first,  second,  or  third  class,  not  exceeding  eleven  pounds  in  weight, 
or  greater  in  size  than  seventy-two  inches  in  girth  and  length  com- 
bined, nor  in  form  or  kind  likely  to  injure  the  person  of  any  postal 
employee  or  damage  the  mail  equipment  or  other  mail  matter,  and 
not  of  a  character  perishable  within  a  period  reasonably  required 
for  transportation  and  delivery"  (Sec.  8).    These  limits  have  been, 
and  will  be,  raised  from  time  to  time. 

28  But  see  Bodley,  "The  Post  Office  Department  as  a  Common 
Carrier  and  Bank,"  18  American  Law  Review,  218  (1884). 

29  See  Williams,  passim. 


POWER  OF   CONGRESS   TO   ESTABLISH    POSTOFFICES          3! 

the  forties  the  rise  of  the  express  companies,  and  their 
transportation  of  large  packets  and  in  some  cases  of  matter 
which  the  postoffice  undertook  to  carry,  reduced  federal 
revenues  and  seriously  interfered  with  the  efficiency  and 
effectiveness  of  the  government  monopoly.30  But  at  any 
time  the  situation  could  have  been  remedied  by  congressional 
action.  On  the  other  hand,  objection  has  been  made  to  the 
assumption  by  Congress  under  the  postoffice  clause,  of  the 
functions  of  a  common  carrier,  on  the  ground  that  they  were 
not  comprehended  by  the  original  grant.31 

Now,  Congress  clearly  has  the  power  to  insure,  upon  the 
payment  of  extra  fees,  the  safe  transmission  of  letters  or 
packets  to  the  addressees,  but  the  postal  money  order  system 
cannot  be  justified  upon  any  such  theory.  The  act  of  May 
17,  i86432  authorized  the  postmaster  general  to  establish, 
"  under  such  rules  and  regulations  as  he  may  find  expedient 
and  necessary,  a  uniform  money  order  system  at  all  post- 
offices  which  he  may  deem  suitable  therefor."  The  law 
fixed  thirty  dollars  as  the  maximum  amount  for  which  an 
order  could  be  issued,  the  purpose  of  the  system  being  to 
afford  "  a  cheap,  immediate  and  safe  agency  for  the  transfer 
through  the  mails  of  small  sums  of  money."33  In  practice 
the  payee  or  party  for  whom  the  money  was  intended,  was 
not  named  in  the  order,  which  was  given  to  the  applicant 
upon  the  payment  of  the  sum  specified  and  the  proper  fee, 
and  his  filling  out  a  printed  form  of  application.  This  was 
forwarded  to  the  postmaster  at  the  office  upon  which  the 
order  was  drawn,  and  the  latter,  therefore,  had  the  informa- 
tion necessary  to  detect  fraud  if  any  was  attempted.  The 

30  Reports  of  the  Postmaster  General,  1841-1845. 

31 "  It  might  be  easily  shown,  for  instance,  that  the  power  over  the 
mails  is  limited  to  the  transmission  of  intelligence,  and  that  Con- 
gress cannot,  consistently  with  the  nature  and  object  of  the  power, 
extend  it  to  the  ordinary  objects  of  transportation,  without  a  mani- 
fest violation  of  the  Constitution,  and  the  assumption  of  a  principle 
which  would  give  the  government  control  over  the  general  trans- 
portation of  the  country,  both  by  land  and  water."  Speech  of  John 
C.  Calhoun.  12  Debates  of  Congress,  1142.  See  also  18  American 
Law  Review,  218. 

33  13  Stat  L.  76. 

33  Report  of  the  Postmaster  General,  1864,  p.  24. 


32  THE   POSTAL   POWER   OF   CONGRESS 

issue  of  these  postal  notes  was  discontinued  in  i894,34 
although  their  use  has  since  been  urged  ;35  under  the  money 
order  system  as  it  now  obtains,  the  payee  is  named  in  the 
instrument.86 

In  the  Senate  there  was  no  debate  other  than  on  the 
administrative  features  of  the  law  of  1864  ;37  the  constitu- 
tional question  was  not  discussed.  Some  doubt,  however, 
has  since  been  expressed  as  to  the  power  of  Congress  to 
establish  a  system  of  postal  savings  banks.  These  were, 
according  to  the  title  of  the  act,  to  hold  "  savings  at  interest 
with  the  security  of  the  government  for  repayment  thereof, 
and  for  other  purposes."  It  was  provided  that  available 
funds  should  be  used  in  the  redemption  of  United  States 
bonds,  and  the  act  recited,  "that  the  faith  of  the  United 
States  is  solemnly  pledged  to  the  payment  of  the  deposits 
made  in  the  postal  savings  depository  offices,  with  accrued 
interest  thereof,  as  herein  provided."  This  section  would 
seem  to  imply  that  the  receiving  of  deposits  could  be  con- 
sidered as  borrowing  money  on  the  credit  of  the  United 
States. 

Objection,  upon  constitutional  grounds,  was,  however, 
made  by  Mr.  Moon  of  Tennessee,  in  a  minority  report  which 
he  presented  to  the  House  of  Representatives.38  He  argued 
that  no  express  authority  could  be  found  in  the  Constitution, 
and  that  "the  depository  is  not  a  bank  within  the  legal 
meaning  of  that  word;  nor  do  the  trustees  created  by  this 
act  collect  money  (deposits)  from  the  people  for  govern- 
mental purposes,  but  simply  become  federal  trustees  of 
private  funds  for  loan  or  reinvestment  at  interest." 

It  would  seem,  however,  that  the  provision  for  redeeming 
United  States  bonds  and  the  general  tenor  of  the  law,  could, 

34  28  Stat.  L.  30. 

35  See  Reports  of  the  Postmaster  General,  1908-1911. 

36  Postal  Laws  and  Regulations  of  1913,  Title  VIII,  "  Money  Or- 
der System,"  p.  529  ff. 

37  Congressional  Globe,  38th  Cong.,  ist  Sess.,  pp.  1694,  1771,  1861. 

38  Act  of  June  25,  1910;  36  Stat.  L.  814.    A  system  had  been  rec- 
ommended by  postmasters  general  in   1871-1873,    1880-1882,    1887- 
1890,  1907-1909.    See  6ist  Cong.,  2d  Sess.,  House  Rept  No.  1445, 
and  for  Mr.  Moon's  argument,  ibid.,  Part  2. 


POWER  OF  CONGRESS  TO  ESTABLISH    POSTOFFICES          33 

without  violence,  enable  the  system  to  be  looked  upon  as 
established  for  the  purpose  of  borrowing  money  on  the  credit 
of  the  United  States,  or  of  obviating  in  some  degree  the 
issuance  of  emergency  currency  in  financial  crises  through 
the  deposit  with  the  government,  and  subsequent  circulation, 
of  large  sums  of  money  which  has  hitherto  been  hoarded. 
But  apart  from  this,  while  extensions  of  the  postal  func- 
tion to  include  banking  facilities  for  the  receipt  of  deposits 
and  the  issuance  of  money  orders,  were  certainly  not  con- 
templated by  the  framers  of  the  Constitution,  and  are  not 
connected  with  the  transmission  of  intelligence,  they  are, 
from  foreign  precedent,  logical  parts  of  the  modern  postal 
power.  It  is  extremely  difficult,  moreover,  for  a  citizen  to 
show  an  amount  of  interest  sufficient  to  bring  before  the 
courts  the  constitutionality  of  such  non-essential  functions 
of  the  government.39  And  especially  is  this  the  case  when 
their  exercise  does  not  entail  taxation,  but  actually  results  in 
increased  revenues,  and  interferes  slightly  if  at  all,  with  the 
exercise  of  the  same  functions  by  private  undertakings. 
Finally,  it  should  be  remembered  that  the  powers  granted 
in  the  postal  clause  "  are  not  confined  to  the  instrumentali- 
ties of  commerce,  or  the  postal  service  known  or  in  use 
when  the  Constitution  was  adopted,  but  they  keep  pace  with 
the  progress  of  the  country,  and  adapt  themselves  to  the 
new  developments  of  time  and  circumstances."40  Accord- 
ing to  this  view  there  is  no  constitutional  doubt  as  to  the 
right  of  the  postoffice  to  engage  in  the  banking  activities 
thus  far  attempted. 

Collectivist  Activities. — The  primary  purpose  of  the  postal 
power  is,  of  course,  the  transmission  of  intelligence,  but  with 
vast  equipment  and  organization  once  in  existence,  it  is  a 
comparatively  simple  matter  for  the  government  to  increase 
in  number  and  in  kind,  the  services  which  the  postoffice 
may  perform  for  its  patrons.  In  New  Zealand  postoffices, 

*»  Wilson  v.  Shaw,  204  U.  S.  24  (1907). 

40Pensacola  Telegraph  Co.  v.  Western  Union  Telegraph  Co.,  96 
U.  S.  i  (1877). 
3 


34  THE   POSTAL   POWER   OF   CONGRESS 

for  example,  a  person  can  buy  stamps,  mail  a  letter  or 
parcel,  send  a  telegram,  deposit  money,  collect  a  pension, 
report  births  and  deaths,  and  insure  his  life.41 

It  is  due,  in  part,  at  least,  to  the  federal  system  of  govern- 
ment in  the  United  States  that  Congress  has  been  reluctant 
to  increase  the  functions  of  the  postoffice.  But  the  money 
order  system  and  postal  savings  banks  have  now  been  estab- 
lished, and  it  seems  inevitable  that  the  telegraph  and  tele- 
phone systems  of  the  country  will  shortly  be  nationalized.42 
So  also  rural  free  delivery  has  caused  congressional  aid  to 
be  given  to  the  good  roads  movement  and  several  schemes 
have  been  proposed  for  extensive  road  construction  under 
federal  auspices.43 

The  inauguration  of  the  parcel  post,  which  in  fact  has 
made  the  postoffice  a  common  carrier,  has  led  to  serious 
efforts  on  the  part  of  the  government  towards  an  adequate 
appreciation,  by  possible  users,  of  the  advantages  of  the  new 
facilities,  and  a  campaign  of  education  is  carried  on,  not  so 
much  with  a  view  of  increasing  revenues,  as  of  fostering 
the  "producer  to  consumer"  movement,  particularly  in 
farm  products.  Congress  authorized  the  Secretary  of  Agri- 
culture "to  acquire  and  diffuse  among  the  people  of  the 
United  States  useful  information  on  subjects  connected  with 
the  marketing  and  distributing  of  farm  products  "  and  under 
this  authority  the  Office  of  Markets  was  established  on  May 
16,  IQI3.44  It  employs  specialists  in  marketing  various  com- 
modities, and  issues  bulletins  on  the  facilities  for,  and  ad- 
vantages of,  shipping  different  products  by  parcel  post. 
Agents  are  sent  to  appropriate  sections  of  the  country  to  do 
personal  work  and  local  offices  are  active  in  collecting  lists 
of  the  names  of  farmers  and  others  who  have  produce  to 

41  Davies,  The  Collectivist  State  in  the  Making,  p.  39. 

42  Below,  Chapter  VI. 

43  Below,  p.  80  ff.     See  also  "  The  States  and  their  Roads,"  N.  Y. 
Nation,  August  20,   1914,   and   Bourne,   "  Practical  Plan  to   Spend 
$3,000,000  for  Public  Roads,"  N.  Y.  Times,  May  n,  1913. 

44  Annual  Reports  of  the  Department  of  Agriculture,  1914  (Re- 
port of  the  Chief  of  the  Office  of  Markets). 


POWER  OF  CONGRESS  TO  ESTABLISH    POSTOFFICES          35 

sell,  and  printing  and  distributing  these  lists  to  postal  patrons 
who  may  become  purchasers.45 

It  is  proposed,  furthermore,  to  use  postoffices  as  employ- 
ment bureaus,  and  a  bill,  the  adoption  of  which  was  strongly 
urged  on  the  Sixty-third  Congress  by  Senator  Clapp,  pro- 
vided that  the  postmaster  general  establish,  "under  such 
rules  and  regulations  as  he  may  prescribe,  mutual  employ- 
ment exchanges  at  all  presidential  postoffices,  where  registers 
may  be  kept  of  any  and  all  persons  who  make  application  to 
be  registered,  as  either  seeking  employment,  or  seeking  em- 
ployees, which  information  may  also  be  exchanged  between 
such  offices,  all  in  the  interest  of  the  proper  and  timely  dis- 
tribution of  labor  throughout  the  country."46  This  service 
would  be  made  self-sustaining  through  the  sale  of  registra- 
tion stamps.  The  bill  failed  of  passage. 

But  pending  action  of  this  character,  or  the  adoption  by 
Congress  of  legislation  designed  to  lessen  unemployment 
without  using  the  postoffice,  the  Secretary  of  Labor  and 
the  Postmaster  General,  cooperated  in  formulating  an  ar- 
rangement by  which  "information  relating  to  the  distribu- 
tion of  labor  could  be  widely  scattered  and  posted  under  the 
auspices  of  the  United  States  Government. 

"  The  plan,"  Secretary  Wilson  goes  on  to  explain,  "  con- 
sists of  dated  bulletins  sent  out  by  the  Department  of  Labor 
to  postmasters  throughout  the  country,  by  whom  they  are 
posted  on  the  bulletin  boards  so  that  every  postoffice  patron, 
— and  this  means  every  man,  woman  and  child,- — can  easily 
refer  to  the  information.  These  are  known  as  '  Bulletins  of 
Opportunities/  They  are  replaced  with  others  from  time 
to  time  as  necessary,  and  suitable  notice  is  given  when  they 
become  inoperative.  This  plan  has  received  the  indorsement 
of  the  various  state  authorities,  who  have  been,  and  arer 
cooperating  with  the  Department  of  Labor  in  scattering  in- 

45  Report  of  the  Postmaster  General,  1914,  p.  8  ff.    See  also  U.  S. 
Department  of  Agriculture,  Farmers'  Bulletins,  inter  alia,  Nos.  594 
and  611,  and  The  National  Parcel  Post  News  (Washington),  Octo- 
ber 7,  1914,  and  weekly  thereafter. 

46  S.  5180,  6ad  Cong.,  2d  Sess.  (April  8,  1914). 


36  THE   POSTAL   POWER   OF   CONGRESS 

formation  about  labor  opportunities  and  conditions  in  their 
respective  states."47 

In  collectivist  facilities,  either  at  present  in  existence  or 
very  seriously  urged,  the  American  postoffice  is,  then,  not 
far  behind  that  of  New  Zealand.  It  affords  a  significant 
illustration  of  the  tendency  of  the  federal  government 
gradually  to  engage  in  many  activities,  properly  national, 
which  are  too  big  for  the  states,  and  too  expensive  or 
paternalistic  for  private  undertakings.  The  aim  is  that  the 
maximum  benefit  may  inure  to  the  citizen. 

Postal  Crimes. — The  postal  power,  as  Marshall  pointed 
out  in  McCulloch  v.  Maryland,48  "  is  executed  by  the  single 
act  of  making  the  establishment.  But  from  this  has  been 
inferred  the  power  and  duty  of  carrying  the  mail  along  the 
postroad,  from  one  postoffice  to  another.  And  from  this 
implied  power  has  again  been  inferred  the  right  to  punish 
those  who  steal  letters  from  the  postoffice,  or  rob  the  mail. 
It  may  be  said  with  some  plausibility  that  the  right  to  carry 
the  mail  and  to  punish  those  who  rob  it  is  not  indispensably 
necessary  to  the  establishment  of  a  postoffice  and  postroad. 
The  right  is  indeed  essential  to  the  beneficial  exercise  of 
the  power,  but  not  indispensably  necessary  to  its  existence." 

Such  a  power  was  asserted  even  before  the  adoption  of 
the  Constitution;  the  Ordinance  of  1782  meticulously  for- 
bade the  employees  to  delay  or  rob  the  mails,  under  penalty 
of  fines  "  to  be  used  for  and  recovered  in  an  action  of  debt " 
by  the  treasurer  of  the  United  States;  a  supplementary 
ordinance  attempted  to  establish  a  monopoly,  and  it  was 
made  lawful  for  the  postmaster  general  "  to  allow  and  pay 
to  any  informer,  one  moiety  of  the  penalties  which  may  be 
recovered  upon  his  information,  for  offences,  against  the 
fourth  and  fifth  clauses  of  the  above  mentioned  ordinance."49 

The  Act  of  February  20,  I79250  greatly  extended  these 


4T  Wilson,  "  Uncle  Sam ;  Employment  Agent,"  The  Outlook,  Feb- 
rqary  17,  1915,  p.  395. 
«  4  Wheat.  316  (1819). 

49  See  above,  p.  19. 

50  i  Stat.  L.  232. 


POWER  OF  CONGRESS  TO  ESTABLISH    POSTOFFICES          37 

criminal  provisions,  infraction  of  which  was  to  be  punished 
in  the  federal  courts.  Some  of  the  penalties  provided  for 
the  more  serious  offences  now  seem  severe,  but  they  are 
evidence  of  how  important  Congress  deemed  the  inviolability 
of  the  mails.  By  this  act  it  was  provided,  "that  if  any 
person  shall  obstruct  or  retard  the  passage  of  the  mail,  or 
of  any  horse  or  carriage  carrying  the  same,  he  shall,  upon 
conviction,  for  every  offence  pay  a  fine  not  exceeding  one 
hundred  dollars.  And  if  any  ferryman  shall,  by  wilful 
negligence,  or  refusal  to  transport  the  mail  across  any  ferry, 
delay  the  same,  he  shall  forfeit  and  pay,  for  each  half  hour 
that  the  same  shall  be  so  delayed,  a  sum  not  exceeding  ten 
dollars."  A  fine  and  disqualification  for  holding  any  office 
under  the  United  States  were  the  penalties  inflicted  "  if  any 
deputy  postmaster  or  other  person  authorized  by  the  post- 
master general  to  receive  the  postage  of  letters,  shall  fraudu- 
lently demand  or  receive  any  rate  of  postage,  or  any  gratuity 
or  reward,  other  than  is  provided  by  this  act  for  the  postage 
of  letters  or  packets."  Vessels  were  forbidden  to  enter  any 
port  of  the  United  States  and  break  bulk  until  their  letters 
had  been  delivered  to  the  postmaster,  and  the  officer  of  the 
port  could  require  an  oath  of  delivery.  Exception,  how- 
ever, was  made  in  the  case  of  letters  to  the  owner  or 
consignee,  and  when  the  vessel  had  letters  directed  to  another 
port. 

In  an  effort  to  make  the  postal  system  efficient  by  insur- 
ing it  against  private  competition  and  the  consequent  diminu- 
tion of  revenues,  there  was  a  provision  (still  in  force, 
although  modified),  declaring  the  federal  establishment  a 
monopoly  and  making  any  infringement  punishable  by  a 
fine.  The  act  recited  "that  if  any  person,  other  than  the 
postmaster  general  or  his  deputies,  or  persons  by  them  em- 
ployed, shall  take  up,  receive,  order,  dispatch,  carry,  convey, 
or  deliver,  any  letter  or  letters,  packet  or  packets,  other  than 
newspapers,  for  hire  or  reward,  or  shall  be  concerned  in 
setting  up  any  foot  or  horse  post,  wagon  or  other  carriage, 
by  or  in  which  any  letter  or  packet  shall  be  carried  for  hire, 


38  THE   POSTAL   POWER   OF   CONGRESS 

on  any  established  postroad,  or  any  packet  or  other  vessel 
or  boat,  or  any  conveyance  whatever,  whereby  the  revenue 
of  the  general  postoffice  may  be  injured,  every  person  so 
offending  shall  forfeit  for  every  such  offence,  the  sum  of 
two  hundred  dollars.51  Provided,  that  it  shall  and  may  be 
lawful  for  every  person  to  send  letters  or  packets  by  special 
messenger." 

Fine  and  imprisonment  were  the  punishments  for  unlaw- 
fully delaying,  embezzling,  secreting,  or  destroying  any 
letter  or  package  not  containing  money ;  but  if  the  letter  or 
packet  contained  any  kind  of  money,  negotiable  paper, 
bonds,  or  warrants,  the  punishment  upon  conviction  was 
death.  The  carrier  was  forbidden  to  desert  the  mail  before 
he  reached  his  destination;  robbing  any  carrier,52  the  mail, 
or  the  postoffice  was  punishable  by  death.  Ten  dollars  was 
the  penalty  for  an  unlawful  use  of  the  franking  privilege. 
One  half  of  all  the  fines  recovered  went  to  the  persons  in- 
forming and  prosecuting  for  the  offences,  and  in  1797  it  was 
provided  that  accomplices  in  the  commission  of  postal  crimes 
should  be  subject  to  the  same  punishment  as  the  principals.53 
In  1810  whipping  was  abolished,54  but  the  death  penalty  for 
a  second  robbery,  or  for  putting  the  carrier's  life  in  jeopardy, 
was  continued.  This  is  strong  evidence  of  congressional 
insistence  upon  the  sanctity  of  the  mails,  since  in  1825  only 
fine  and  imprisonment  were  the  punishment  for  assaults  on 
the  high  seas,  or  within  admiralty  jurisdiction  with  intent  to 
commit  a  felony.55 

Upon  the  basis  of  these  early  regulations,  Congress  has 
passed  many  laws  calculated  to  prevent  interference  with  the 
mails  or  their  misuse;  most  of  the  original  crimes  are  still 

51  Changed  to  $50  by  the  act  of  May  8,  1794 ;  i  Stat.  L.  354. 

52  Changed  by  the  act  of  March  2,  1799  (i  Stat  L.  733)  to  forty 
lashes  and  ten  years  imprisonment  for  the  first  offense,  but  death 
for  the  second  offense,  or  if  the  carrier  was  wounded  or  his  life 
put  in  jeopardy.     In  1794  (i  Stat.  L.  354)  the  penalty  for  stealing 
mail  or  letters  from  the  postoffice  was  changed  to_  fine  and  impris- 
onment and  in  1799  to  thirty  lashes  and  two  years  imprisonment. 

53  Act  of  March  3,  1797;  i  Stat.  L.  509. 

54  2  Stat.  L.  592. 

55  Act  of  March  3,  1825 ;  4  Stat.  L.  122. 


POWER  OF  CONGRESS  TO  ESTABLISH   POSTOFFICES         39 

forbidden  and  the  changes  made  have  been  in  detail  rather 
than  character,  with  one  important  exception:  there  has 
gradually  been  built  up  an  Index  Expurgatorius  of  articles 
which  it  is  unlawful  to  deposit  in,  or  to  take  from,  the  mails 
for  purposes  of  circulation.  But  with  this  exception,  the 
penal  laws  do  not  differ  radically  from  those  of  a  century 
ago. 

.Nearly  all  "Offenses  against  the  Postal  Service"  have 
been  brought  together  as  Chapter  8  of  the  Criminal  Code  of 
the -United  States.56  It  is  now  unlawful  to  conduct,  or 
profess  to  conduct,  a  postoffice  without  authority;  to  carry 
the  mail  otherwise  than  according  to  law ;  to  set  up  private 
expresses ;  to  transport  persons  unlawfully  conveying  the 
mail;  to  send  letters  by  private  express  or  for  carriers  to 
convey  them  over  regular  post  routes  otherwise  than  in  the 
mail ;  to  wear  the  uniform  of  a  carrier  without  authority  or 
to  pose  as  a  carrier  of  the  United  States  mail  when  such  is 
not  in  fact  the  case.  Injuring  mail  bags,  stealing  postoffice 
property,  stealing  or  forcing  mail  locks  or  keys,  breaking 
into  or  entering  a  postoffice,  unlawfully  entering  a  postal 
car,  stealing,  secreting  and  embezzling  mail  matter  or  its 
contents,57  assaulting  a  carrier  with  intent  to  rob  and  robbing 
the  mail;  injuring  letter  boxes  or  mail  matter;  "knowingly 
and  wilfully"  obstructing  or  retarding  the  passage  of  the 
mail,  all  are  crimes  punishable  in  the  federal  courts. 

It  is  an  offence  for  any  employee  of  the  service  to  detain, 
destroy  or  embezzle  a  letter  or  newspaper ;  for  a  ferryman  to 
"  delay  the  passage  of  the  mail  by  willful  neglect  or  refusal 
to  transport " ;  for  the  master  of  a  vessel  to  fail  to  deposit 
with  the  postoffice  all  mail  from  abroad  or  to  break  bulk 
before  making  such  delivery.  No  one  may  sell  or  use  a 

56  35  Stat.  L.  1088,  1123. 

57  "  Where  a  letter  carrier  left  a  letter  in  the  hall  of  the  residence 
of  the  person  to  whom  it  was  addressed,  and  the  defendant  opened 
it  with  intent  to  pry  into  the  business  and  secrets  of  the  owner  "  it 
was  held  to  be  a  violation  of  the  provision  against  taking  mail  before 
it  reached  the  addressee,  and  the  principle  was  laid  down  that  the 
protection  extends  until  the  letters  reach  their  destination  by  actual 
delivery  to  the  persons  entitled  to  receive  them.    U.  S.  v.  McCready, 
ii  Fed.  Rep.  225  (1882),  citing  U.  S.  v.  Hall,  98  U.  S.  343  (1878). 


4O  THE   POSTAL   POWER   OF   CONGRESS 

cancelled  stamp  or  remove  the  cancellation  marks;  postal 
employees,  moreover,  are  prohibited  from  making  false  re- 
turns to  increase  their  compensation,  from  unlawfully  col- 
lecting postage,  from  failing  to  account  for  postage  or  to 
cancel  stamps,  and  from  issuing  a  money  order  without 
payment. 

There  are  also,  as  I  have  indicated,  a  number  of  laws 
denying  the  use  of  the  mails  for  the  transmission  of  obscene 
or  libellous  writings,  lottery  tickets  and  advertisements, 
fraudulent  matter,  poisons,  intoxicating  liquors,  explosives 
and  similar  articles  which  come  under  the  ban  of  the  police 
power.  Furthermore,  the  complexity  of  political  life  and 
more  numerous  administrative  problems  in  the  service,  have 
given  rise  to  a  separate  class  of  offences ;  thus  it  is  criminal 
for  a  member  of  Congress  to  be  interested  in  a  public  con- 
tract, or  a  postal  employee  in  a  mail  contract;  or  for  an 
employee  to  make  or  receive  a  political  contribution.  There 
is,  finally,  the  so-called  "  newspaper  publicity  law,"  the  con- 
cluding paragraph  of  which  compels,  under  penalty  of  a  fine, 
the  marking  as  an  advertisement  of  all  reading  matter  for 
the  publication  of  which  a  valuable  consideration  is  re- 
ceived.68 

Marshall's  dictum  in  McCulloch  v.  Maryland  has  re- 
mained unquestioned ;  it  has  never  been  doubted  that  Con- 
gress has  the  power  to  punish  offences  against  the  mails 
themselves,  or  neglect  of  duty  by  postal  employees.  The 
constitutionality  of  such  legislation  has  never  been  attacked ; 
the  courts  have  only  been  called  upon  to  decide  technical 
points.  For  example,  the  word  "rob"  is  used  in  its  com- 
mon law  sense;  jeopardy  "means  a  well-grounded  appre- 
hension of  danger  to  life,  in  case  of  refusal  or  resistance  " ; 
pistols  are  dangerous  weapons  within  the  meaning  of  the 
law ;  and  "  all  persons  present  at  the  commission  of  a  crime, 
consenting  thereto,  aiding,  assisting,  or  abetting  therein,  or 
in  doing  any  act  which  is  a  constituent  of  the  offence,  are 
principals."59  The  detention  of  mail  by  one  employed  in 


58  Act  of  August  24,  1912 ;  37  Stat.  L.  554.     See  below,  pp.  121,  164. 

59  U.  S.  v.  Wilson,  i  Baldwin  (U.  S.  C.  C),  78  (1830). 


POWER  OF  CONGRESS  TO  ESTABLISH    POSTOFFICES          4! 

the  postoffice,  refers  to  a  letter  or  packet  before  it  reaches 
its  destination ;  the  taking  must  be  clandestine  and  the  intent 
criminal.**  An  indictment  for  advising  a  carrier  to  rob  the 
mail  must  aver  that  the  offence  has  been  committed;61  a 
sword  in  the  hand,  although  not  drawn,  is  a  dangerous 
weapon;  a  pistol  is  presumed  to  be  charged.62  These  are 
some  of  the  questions  that  the  courts  have  been  called  upon 
to  determine. 

Nor  has  there  been  any  dispute  as  to  the  power  of  Con- 
gress- to  establish  a  monopoly  by  forbidding  private  postal 
enterprises.63  As  was  pointed  out  in  an  early  case,  "  No 
government  has  ever  organized  a  system  of  posts  without 
securing  to  itself,  to  some  extent,  a  monopoly  of  the  carriage 
of  letters  and  mailable  packets.  The  policy  of  such  an  ex- 
clusive system  is  a  subject  of  legislative,  not  of  judicial 
inquiry.  But  the  monopoly  of  the  government  is  an  op- 
tional, not  an  essential  part  of  its  postal  system.  The  mere 
existence  of  a  postal  department  of  the  government  is  not  an 
establishment  of  the  monopoly."64  Thus  questions  have 
arisen  as  to  the  extent  and  scope  of  the  original  provision 
and  the  amendments  that  have  been  made  to  it. 

60  U.  S.  v.  Pearce,  2.  McLean's  C.  C.  R.  14  (1839). 

61  U.  S.  v.  Mills,  7  Peters,  138  (1833). 

e2  U.  S.  v.  Wood,  3  Wash.  C.  C.  R.  440  (1818).  See  also  U.  S.  v. 
Hardyman,  13  Peters,  176  (1839). 

63  U.  S.  v.  Thompson,  28  Fed.  Cas.  97  (1846).  But  see  "The 
Postoffice  Monopoly,"  n  Law  Reporter,  384  (January,  1849).  In 
this  paper  the  writer  argues  that  the  idea  of  a  monopoly  is  not  inci- 
dental to  the  postal  grant  and  that  the  framers  did  not  intend  to 
make  the  postoffice  a  source  of  general  revenue.  The  Constitution 
enumerates  methods  of  raising  funds  and  Expressio  unius,  exclusio 
alterius.  Mr.  Paterson's  plan  as  proposed  to  the  Convention  named 
the  postoffice  as  a  source  of  revenue,  but  his  language  was  rejected. 
May  the  same,  asks  this  writer,  be  said  of  his  theory?  (p.  396). 
And  if  the  federal  government  has  no  such  power  it  has  no  right 
of  espionage  and  it  may  not  say  of  what  "mailable  matter"  con- 
sists (p.  397). 

64 U.  S.  v.  Kochersperger,  26  Fed.  Cas.  803  (1860).  "In  a  royal 
grant  of  the  office  of  postmaster  to  foreign  parts  (July  19,  1632, 
XIX  Rymer's  Foedera,  385)  the  monopoly  is  justified  by  the  con- 
sideration 'how  much  it  imports  to  the  state  of  the  King  and  this 
realm  that  the  secrets  thereof  be  not  disclosed  to  foreign  nations, 
which  cannot  be  prevented  if  a  promiscuous  use  of  transmitting  or 
taking  up  of  foreign  letters  and  packets  should  be  suffered.'" 
Freund,  Police  Power,  p.  688,  n. 


42  THE   POSTAL   POWER   OF    CONGRESS 

In  1834,  for  example,  New  Orleans  citizens  complained  of 
slow  mails,  and  proposed  a  plan  of  forming  a  private  asso- 
ciation for  a  daily  express  line  to  New  York.  But  the  pro- 
ject being  referred  to  Chancellor  Kent  for  his  opinion,  he 
advised  that  "  the  objects  of  the  association  cannot  be  carried 
into  effect,  in  the  way  proposed,  without  violating  the  post- 
office  law."65  In  1844  the  Attorney  General  gave  an  opinion 
that  letters  carried  over  mail  routes  by  private  carriers 
could  not  be  charged  with  postage,  nor  could  the  letters  be 
detained;  the  only  available  course  was  "to  enforce  the 
penalties  to  which  all  unauthorized  carriers  of  letters  on  the 
mail  routes  are  by  law  subjected."66 

As  for  the  general  interpretation  of  the  statute,  a  federal 
circuit  court,  in  holding  that  it  was  not  unlawful  to  carry 
an  unstamped  letter  of  advice  concerning  money  shipped  by 
express,  said :  "  These  provisions  of  the  postoffice  law,  being 
in  derogation  of  common  right,  must  be  construed  strictly, 
and  in  the  absence  of  clear  and  explicit  language,  forbidding 
the  carriage  of  a  letter,  under  the  circumstances  indicated, 
we  must  hold  that  the  right  to  do  so  is  not  interfered  with."67 
The  Supreme  Court  of  the  United  States,  however,  had 
previously  declared  that  the  act  was  undoubtedly  a  revenue 
law,68  although  "not  drawn  with  all  the  precision  and  ex- 
plicitness  desirable  in  penal  legislation."  And  the  rule  of 
interpretation  as  laid  down  by  the  Department  of  Justice 
was  that  the  acts  "are  not  subjected  to  the  narrow  rules 
formerly  applied  in  the  construction  of  penal  statutes.  .  .  . 
In  our  courts,  such  acts  receive  the  same  construction  that 

65  Act  of  March  2,  1827 ;  4  Stat.  L.  238 ;  Niles'  Register,  vol.  xlvii, 
p.  120.    Until  1827  newspapers  could  be  carried  privately,  but  by  the 
act  of  this  year  an  express  exception  hitherto  existing  was  omitted. 
At  the  present  time,  of  course,  they  may  be  carried  outside  of  the 
mail.     See  Postal  Laws  and  Regulations  of  1913,  p.  605. 

66  4  Opinions  of  the  Attorneys  General,  349   (1844).     If  a  pas- 
senger takes  the  letters  without  the  knowledge  of  the  carrier,  the 
latter  is  not  liable  and  no  penalty  is  incurred  by  the  person  sending 
the  letters ;  but  if  the  practice  is  known  by  public  advertisement  the 
carrier  will  be  liable  and  also  the  person  employing  agents  to  carry 
his  mail.    U.  S.  v.  Hall,  26  Fed.  Cas.  75  (1844)- 

67  U.  S.  v.  U.  S.  Express  Co.,  5  Biss.  91  (1869). 

68  U.  S.  v.  Bromley,   12  How.  88   (1851).     See  also  4  Ops.  159 
(1843). 


POWER  OF  CONGRESS  TO  ESTABLISH    POSTOFFICES         43 

would  be  put  upon  any  other  remedial  legislation ;  that  is,  a 
fair,  sensible,  practical  interpretation,  without  reference  to 
any  merely  technical  rule  in  favor  of  the  accused."69 

The  question  arose  in  1858  as  to  the  legality  of  carrying 
letters  to  and  from  the  postofnce  in  a  town  where  a  public 
carrier  had  not  been  appointed.  The  attorney  general  was 
of  the  opinion  that  the  act  forbade  this.  "A  person,"  he 
said,  "who  intends  to  make  the  carrying  of  letters  his 
regular  business,  or  part  of  his  business,  and  to  do  it 
periodically  for  hire,  in  opposition  to  the  public  carrier,  is 
legally  incapable  of  receiving  authority  to  take  letters  out  of 
the  postoffice  for  that  purpose."70  But  when  the  question 
went  to  the  courts,  a  contrary  position  was  taken.  The  Act 
of  March  3,  i85i71  authorized  the  postmaster  general  "to 
establish  postroutes  within  the  cities  or  towns."  The  court 
held  that  the  word  "  postroutes  "  was  not  synonymous  with 
"postroads"  used  in  that  portion  of  the  act  of  1827  which 
made  criminal  attempts  to  compete  with  the  federal  govern- 
ment in  carrying  the  mail.  Hence  private  letter  carriers 
violated  no  law.  This  decision,72  however,  was  overruled 
when  Congress  extended73  the  provisions  of  the  Act  of  1827 
to  all  postroutes  already,  or  thereafter  established,  and  in 
1872™  declared  letter  carrier  routes  within  cities  "post- 
roads."75 

69  4  Ops.  162.     "  By  the  now  settled  doctrine  of  this  court "  reve- 
nue statutes  are  "not  to  be  construed  like  penal  laws  generally, 
strictly  in  favor  of  the  defendant ;  but  they  are  to  be  fairly  and  rea- 
sonably construed,  so  as  to  carry  out  the  intention  of  the  legislature." 
U.  S.  v.  Stowell,  133  U.  S.  i  (1890). 

70  9  Ops.  161  (1858)  ;  but  see  U.  S.  v.  Kochersperger,  above. 
71 9  Stat.  L.  591. 

72  U.  S.  v.  Kochersperger,  above.    While  resting  its  decision  on  a 
literal  interpretation  of  the  statute,  the  court  intimated  that  the  public 
streets  of  a  municipality  were  different   from  highways,   and  ex- 
pressed doubt  as  to  whether  they  could  "  be  established  by  Congress 
as  postroads  for  any  other  purpose  than  the  carriage  of  the  mail." 
See  below,  p.  151. 

73  Act  of  March  2,  1861 ;  12  Stat.  L.  205. 

74  Act  of  June  8,  1872;  17  Stat.  L.  309. 

75Blackham  v.  Gresham,  16  Fed.  Rep.  609  (1883).  In  1872,  citi- 
zens of  Davenport,  Iowa,  were  permitted  to  employ  a  private  dis- 
patch company  to  deliver  within  the  city  limits  mail  upon  which  no 
U.  S.  postage  had  been  paid ;  this  was  allowed  because  the  streets  of 
the  city  had  not  been  made  postroutes.  14  Ops.  152. 


44  THE   POSTAL   POWER  OF   CONGRESS 

Thus  when  an  express  company  had  a  number  of  mes- 
sengers to  collect  letters  daily  from  certain  customers  who 
paid  with  private  stamps,  previously  sold,  the  letters  being 
taken  to  an  office,  sorted,  and  dispatched  to  the  addressees, 
the  court  held  that  these  deliveries  could  not  be  deemed  "  by 
messenger  employed  for  the  particular  occasion  only,"  but 
were  deliveries  "  by  regular  trips  and  at  stated  periods,"  and 
the  defendant  was  therefore  liable.78 

There  has  always  been  the  exception  that  the  carrier  is 
permitted  to  transport,  otherwise  than  in  the  mail,  letters  or 
packets  relating  "  to  some  part  of  the  cargo  of  such  steam- 
boat or  other  vessel,  to  the  current  business  of  the  carrier, 
or  to  some  article  "  carried  at  the  same  time.77  Under  this 
inhibition  it  is  not  lawful  for  a  railroad  company  to  carry 
letters  from  one  connecting  line  to  another  line,  when  the 
letters  relate  to  through  business.  The  letters  must  be  sent 
by,  or  addressed  to,  the  carrying  company.78  But  in  1912 
Attorney  General  Wickersham  decided  that  a  railroad  might 
carry  over  its  lines,  not  in  the  mail,  letters  written  by  the 
secretary  of  a  relief  association  (which  was  composed  of  the 
employees  of  the  railroad)  to  the  railroad  company,  but  not 
letters  from  the  officers  of  the  association  to  its  members.7* 

In  1915  the  Supreme  Court  was  called  upon  to  construe 
the  statute  and  held  within  the  "  current  business  "  exception 
"  letters  of  a  telegraph  superintendent,  jointly  appointed  and 
paid  by  a  railway  company,  and  a  telegraph  company,  which 
were  written  to  a  railway  station  agent  and  telegraph 
operator  with  the  purpose  of  promoting  the  efficient  and 
successful  operation  of  the  telegraph  business  in  the  success 
of  which  the  railway  company,  under  the  contract  with  the 
telegraph  company,  has  a  financial  interest."  The  Court 
refused,  however,  to  consider  whether  the  statute  is  "  penal 


76  U.  S.  v.  Easson,  18  Fed.  Rep.  590  (1883). 

77  Rev.  Stat.  Sec.  3985 ;  the  italicised  words  were  added  by  the  Act  of 
March  4,  1909;  35  Stat.  L.  1124.    See  21  Ops.  394  (1896)  ;  28  Ops. 
537  (1910),  and  42  Cong.  Rec.,  973  ff. 

78  21  Ops.  394. 

79  29  Ops.  418  (1912). 


POWER  OF  CONGRESS  TO  ESTABLISH    POSTOFFICES          45 

or  remedial,  or  whether  it  is  to  have  a  strict  or  a  liberal 
interpretation."80 

Another  class  of  offences  has  arisen  out  of  the  section 
providing  punishment  for  "whoever  shall  knowingly  and 
wilfully  obstruct  or  retard  the  passage  of  the  mail,"  or  any 
conveyance  by  which  it  is  being  carried.  Wide  extension  of 
federal  authority  and  effective  federal  supremacy  have  been 
enforced  under  this  provision,  it  having  been  held  that  a 
defendant  toll  gate  keeper  cannot  plead  the  justification  of 
a  state  law  for  stopping  a  carrier  of  the  mail.81  It  has  been 
decided,  also,  that  mail  matter  in  the  postoffice,  ready  for 
delivery,  is  "obstructed"  within  the  meaning  of  the 
statute  by  an  unprovoked  assault  on  the  postmaster.  "  The 
law  presumes  that  the  defendant  intended  by  his  act  the 
result  which  followed  and  the  offense  is  complete."  An  act, 
if  unlawful,  resulting  in  an  obstruction,  is  per  se  done  know- 
ingly and  wilfully.82 

Preventing  a  mail  train  from  running  as  made  up,  even 
though  one  is  willing  that  the  mail  car  shall  go  on,  is  an 
obstruction  within  the  meaning  of  the  statute,83  and  where 
the  regular  passenger  trains  of  a  railroad  company  have 
been  selected  as  the  ones  to  carry  the  mail,  the  failure  of  the 
railroad  to  run  other  trains  for  that  purpose  is  not  neces- 
sarily unlawful.84  It  is  no  defense,  however,  that  the  ob- 
struction was  effected  merely  by  leaving  the  employment, 


«°  U.  S.  v.  Erie  R.  Co.,  235  U.  S.  513  (1915).  It  was  held  that  the 
setting  up  of  a  post  by  a  railroad  car  or  steamboat  was  not  within 
the  act  of  1827.  "  Since  the  passing  of  the  postoffice  laws  new  modes 
of  conveyance  have  been  established  and  a  condition  of  things  arisen 
not  then  known  or  contemplated.  And  the  question  is,  whether  new 
acts  in  contravention  of  the  general  spirit  and  policy  of  the  laws, 
can  be  brought  within  any  of  its  prohibitions,  and  subjected  to  a 
specific  penalty.  However  willing  the  court  might  be  to  attain  that 
end,  it  cannot  strain  or  force  the  language  used  beyond  its  fair  and 
usual  meaning."  U.  S.  v.  Kimball,  26  Fed.  Cas.  782  (1844). 

81  U.  S.  v.  Sears,  55  Fed.  Rep.  268  (1893). 

"U.  S.  v.  Claypool,  14  Fed.  Rep.  127  (1882). 

*»U.  S.  v.  Clark,  25  Fed.  Cas.  443  (1877)  ;  see  also  In  Re  Grand 
Jury,  62  Fed.  Rep.  840  (1894). 

«*In  Re  Grand  Jury,  62  Fed.  Rep.  834  (1894). 


46  THE   POSTAL   POWER   OF    CONGRESS 

"  where  the  motive  of  quitting  was  to  retard  the  mails,  and 
had  nothing  to  do  with  the  terms  of  employment/'85 

These  doctrines  were  given  their  widest  scope  in  the  Debs 
cases.  It  was  held  that  an  indictment  for  obstructing  the 
mails  need  not  set  out  that  the  act  was  done  feloniously, 
since  the  crime  was  not  a  felony  at  the  common  law;  nor, 
furthermore,  is  it  necessary  to  show  knowledge  that  the 
mails  would  be  interfered  with.  "The  laws  make  all  rail- 
ways postroutes  of  the  United  States,"  said  the  court,  "  and 
it  is  within  the  range  of  everyone's  knowledge  that  a  large 
proportion  of  the  passenger  trains  on  these  roads  carry  the 
mails."  Finally  where  the  indictment  is  for  conspiracy  to 
obstruct  the  mails,  and  overt  acts  in  pursuance  thereof,  "  it 
is  not  restricted  to  a  single  overt  act,  since  the  gist  of  the 
offense  is  conspiracy,  which  is  a  single  offense."86 

The  authority  of  Congress  may,  moreover,  be  enforced 
otherwise  than  by  prosecution  for  violations  of  this  provi- 
sion. "  The  entire  strength  of  the  nation,"  said  the  Supreme 
Court,  "  may  be  used  to  enforce  in  any  part  of  the  land  the 
full  and  free  exercise  of  all  national  powers  and  the  security 
of  all  rights  entrusted  by  the  Constitution  to  its  care.  The 
strong  arm  of  the  national  government  may  be  put  forth  to 
brush  away  all  obstructions  to  the  freedom  of  interstate  com- 
merce or  the  transportation  of  the  mails.  If  the  emergency 
arises  the  army  of  the  Nation,  and  all  its  militia,  are  at  the 
service  of  the  Nation  to  compel  obedience  to  its  laws."  And 
the  Supreme  Court  went  on  to  declare  that  "it  is  equally 
within  its  [the  federal  government's]  competency  to  appeal 
to  the  civil  courts  for  an  inquiry  and  determination  as  to  the 
existence  and  character  of  any  alleged  obstructions,  and  if 
such  are  found  to  exist,  or  threaten  to  occur,  to  invoke  the 
powers  of  those  courts  to  remove  or  restrain  such  obstruc- 
tions ;  that  the  jurisdiction  of  the  courts  to  interfere  in  such 
matters  by  injunction  is  one  recognized  from  ancient  times 
and  by  indubitable  authority;  .  .  .  that  the  proceeding  by 

85  Thomas  v.  Cincinnati,  etc.,  Ry.  Co.,  62  Fed.  Rep.  803   (1894)  ; 
but  see  U.  S.  v.  Stevens,  27  Fed.  Cas.  1312  (1877). 

86  U.  S.  v.  Debs,  65  Fed.  Rep.  210  (1895). 


POWER  OF  CONGRESS  TO  ESTABLISH    POSTOFFICES          47 

injunction  is  of  a  civil  character  and  may  be  enforced  by 
proceedings  in  contempt;  that  such  proceedings  are  not  in 
execution  of  the  criminal  laws  of  the  land ;  that  the  penalty 
for  a  violation  of  the  injunction  is  no  substitute  for  and  no 
defence  to  a  prosecution  for  any  criminal  offences  com- 
mitted in  the  course  of  such  violation."87 

When  we  turn,  however,  to  the  power  of  Congress  to 
exclude  from  the  mails,  a  different  problem  is  presented. 
As  has  been  pointed  out,  early  in  the  history  of  the  postofftce, 
mail  matter  was  classified  according  to  its  character  and 
different  rates  of  postage  were  charged.  In  1799  the  Post- 
master General  sent  a  letter  to  Congress  complaining  of 
"  large  and  inconvenient  packages "  and  the  Act  of  1810 
provided  that  "no  postmaster  shall  be  obliged  to  receive, 
to  be  conveyed  by  mail,  any  packet  which  shall  weigh  more 
than  three  pounds."88  Congress,  therefore,  very  early  exer- 
cised the  right  of  determining  what  articles  should  be  mail- 
able  and  the  conditions  upon  which  they  should  be  carried. 

These  exclusions  were  made  to  protect  the  mails.  Ob- 
jection was  made  to  the  "inconvenient  packages"  on  the 
ground  that  the  transit  was  retarded  and  smaller  articles  were 
injured.  Such  restrictions  have  been  maintained,  the  post- 
office  regulations  now  prescribing  the  limits,  both  of  weight 
and  size.  Congress  has,  moreover,  on  the  same  ground, 
conditionally  excluded  a  variety  of  articles,  such  as  poisons, 
explosives,  inflammable  materials,  infernal  machines,  dis- 
ease germs,  and  all  compositions  liable  to  hurt  anyone  or 
injure  the  mails.  It  is  provided,  however,  that  the  post- 
master general  "may  permit  the  transmission  in  the  mails 
under  such  rules  and  regulations  as  he  shall  prescribe 
as  to  preparation  and  packing"  of  any  of  these  articles, 
"not  outwardly  or  of  their  own  force  dangerous  or  in- 
jurious to  life,  health  and  property."  Intoxicating  liquors 
are  absolutely  excluded.  Any  violations  of  the  statutory 


87  In  Re  Debs,  158  U.  S.  564  (1895).     See  also  Fairlie,  National 
Administration,  p.  38;  Cleveland,  The  Government  in  the  Chicago 
Strike,  passim,  and  23  McClure's  Magazine,  p.  227. 

88  2  Stat.  L.  592. 


48  THE   POSTAL   POWER   OF   CONGRESS 

provisions  or  of  regulations  made  by  the  postmaster  general 
in  pursuance  of  the  authority  given  him,  are  punishable  by 
fine  and  imprisonment.89 

The  absolute  exclusion  of  intoxicants,  however,  cannot  be 
justified  upon  the  same  principles  as  the  conditional  ex- 
clusions, since  the  danger  to  the  mails  can  only  arise  from 
the  fact  that  they  are  liquids.  This  distinction  leads 
naturally  to  another  class  of  articles  which  are  denied  postal 
facilities  on  account  of  the  effect  they  will  have  on  recipients. 
In  this  class  is  all  printed  or  written  matter  which  is  obscene, 
libellous  and  indecent,  or  which  relates  to  lotteries  and 
fraudulent  schemes.90 

The  first  inhibition  was  made  by  Congress  in  the  Act  of 
March  3,  1865,  and  by  the  Act  of  June  8,  1872,  codifying 
previous  laws  and  organizing  the  postofftce  on  its  present 
basis,  the  use  of  the  mails  was  denied  to  obscene  matter, 
cards  "  upon  which  scurrilous  epithets  may  have  been  writ- 
ten or  printed,  or  disloyal  devices  printed  or  engraved  "  and 
"  letters  or  circulars  concerning  illegal  lotteries."91  It  has 
since  been  made  criminal  to  take  obscene  or  scurrilous 
matter  from  the  mails  for  purposes  of  circulation.92 

Before  the  Supreme  Court  of  the  United  States,  the 
power  of  Congress  to  exclude  obscene  and  indecent  matter 
from  the  mails93  has  never  been  seriously  questioned,  and  the 
points  presented  for  determination,  largely  to  the  lower 
federal  courts,  have  not  been  as  to  the  constitutional  author- 

89  35  Stat.  L.  1131.    See  Postal  Laws  and  Regulations  of  1913, 
P-  255- 

90  Publications   which  violate  copyrights   granted  by  the  United 
States  cannot  be  mailed.     In  this  case  the  postal  power  is  used  to 
make  more  effectual  legislation  which  it  was  competent  for  Congress 
to  enact.     See  Postal  Laws  and  Regulations  of  1913,  p.  264. 

fli  13  Stat.  L.  507;  17  Stat.  L.  283,  302. 

92  Postal  Laws  and  Regulations  of  1913,  p.  264. 

93  As  to  when  one,  who  does  not  personally  mail  non-rnailable 
matter,  may  be  regarded  as  causing  it  to  be  deposited  in  the  mails, 
see  Demolli  v.  U.  S.,  144  Fed.  Rep.  363  (1906)  ;  6  L.  R.  A.  n.  s.  424, 
and  note.    Importation  into  the  United  States  of  obscene  matter  or 
articles  of  an  immoral  nature  was  forbidden  by  the  act  of  March  2, 
1857,  ii  Stat.  L.  168. 


POWER  OF  CONGRESS  TO  ESTABLISH    POSTOFFICES         49 

ity  of  Congress.94  In  1890,  the  Supreme  Court  held  that 
under  the  Act  of  July  12,  1876  it  was  not  an  offence  to 
deposit  in  the  mails  an  obscene  letter,  enclosed  in  an  en- 
velope, and  refused  to  consider  the  amendment  made  in  1888 
which  had  extended  the  inhibition  to  sealed  matter,  closed 
to  inspection.95  But  in  1895,  the  Court  determined  that 
while  the  possession  of  obscene  pictures  is  not  forbidden,  it 
is  an  offence  to  deposit  in  the  mails  a  letter,  not  in  itself  ob- 
jectionable, but  conveying  information  as  to  where,  and  of 
whom,  such  pictures  could  be  obtained.96  And  the  next 
year  the  Court  refused  to  accept  the  defence  that  the  ob- 
scene matter  was  mailed  in  reply  to  decoy  letters  by  a  gov- 
ernment detective.97 

It  was  held,  moreover,  that  "  the  words  '  obscene/  '  lewd ' 
and  'lascivious/  as  used  in  the  statute,  signify  that  form  of 
immorality  which  has  relation  to  sexual  impurity,  and  have 
the  same  meaning  as  is  given  them  at  common  law  in 
prosecutions  for  obscene  libel.  As  the  statute  is  highly 
penal,  it  should  not  be  held  to  embrace  language  unless  it  is 
fairly  within  its  letter  and  spirit."98  The  penal  code  of 


94  «  For  more  than  thirty  years,  not  only  has  the  transmission  of 
obscene  matter  been  prohibited,  but  it  has  been  made  a  crime,  pun- 
ishable by  fine  or  imprisonment,  for  a  person  to  deposit  such  matter 
in  the  mails.    The  constitutionality  of  this  law,  we  believe,  has  never 
been  attacked."     Public  Clearing  House  v.   Coyne,   194  U.   S.  497 
(1904),  but  see  Dunlop  v.  U.  S.,  165  U.  S.  486  (1897),  and  U.  S.  v. 
Popper,  98  Fed.  Rep.  423  (1899). 

95  U.  S.  v.  Chase,  135  U.  S.  255  (1890).    The  statute  applied  to 
any  "  book,  pamphlet,  picture,  writing,  print,  or  other  publication  " 
of  an  obscene  character.    R.  S.  sec.  3893.    The  prosecution  in  the 
Chase  case  arose  before  the  act  of  September  26,  1888,  which  the 
Court  refused  to  consider,  and  which  extended  the  inhibition  to 
sealed  letters.    25  Stat.  L.  496. 

96  Grimm  v.  U.  S.,  156  U.  S.  604   (1895).    The  Chase  case  was 
followed  by  U.  S.  v.  Wilson,  58  Fed.  Rep.  768  (1893),  which  held 
that  even  under  the  act  of  1888  "  or  other  publication  "  were  qualify- 
ing words  which  excluded  letters,  and  by  U.  S.  v.  Warner,  59  Fed.  Rep. 
355  (1894)  ;  contra,  U.  S.  v.  Nathan,  61  Fed.  Rep.  936  (1894),  and 
U.  S.  v.  Ling,  6 1  Fed.  Rep.  1001  (1894).    All  doubt  was  removed  by 
Grimm  v.  U.  S. 

97  Andrews  v.  U.  S.,  162  U.  S.  420  (1896). 

98  Swearingen  v.  U.  S.,  161  U.  S.  446  (1896),  Justices  Harlan,  Gray, 
Brown  and  White  dissenting,  followed  in  U.  S.  v.  Moore,  104  Fed. 
Rep.  78  (1900)  ;  U.  S.  v.  O'Donnell,  165  Fed.  Rep.  218  (1908)  ;  U.  S. 
v.  Benedict,  165  Fed.  Rep.  221  (1908),  and  Knowles  v.  U.  S.,  170  Fed. 
Rep.  409  (1909). 


5O  THE   POSTAL   POWER   OF    CONGRESS 

1909  extended  the  language  to  exclude  "  every  filthy  "  book, 
pamphlet,  picture  or  letter,  and  this  in  effect  overruled  the 
Swearingen  case." 

There  have  been  questions,  also,  as  to  the  requirements 
for  a  valid  indictment,  which,  it  has  been  held,  need  not  set 
out  the  objectionable  matter,  but  must  inform  the  accused 
of  the  nature  of  the  charge  against  him.100  The  courts  have 
varied  as  to  whether  the  test  of  obscenity  is  that  laid  down 
by  Lord  Cockburn:  Is  the  tendency  of  the  matter  "to 
deprave  and  corrupt  those  whose  minds  are  open  to  such 
immoral  influences  and  into  whose  hands  a  publication  of 
this  sort  would  fall"?101  or  the  dictionary  meaning  as  "of- 
fensive to  chastity,  decency  or  delicacy."  The  question  as  to 
what  is  obscene,  however,  is  for  the  jury  to  determine.102 

Congress  has  also  denied  postal  facilities  to  "all  matter 
otherwise  mailable  by  law,  upon  the  envelope  or  outside 
cover  or  wrapper  of  which,  or  any  postal  card  upon  which 
any  delineations,  epithets,  terms,  or  language  of  an  indecent, 
lewd  .  .  .  libelous,  scurrilous,  defamatory,  or  threatening 
character,  or  calculated  by  the  terms  or  manner  or  style  of 
display  and  obviously  intended  to  reflect  injuriously  upon 
the  character  or  conduct  of  another,  may  be  written  or 
printed  or  otherwise  impressed  or  apparent."  This  prohibi- 
tion has  been  extended  to  include  a  postal  card  demanding 
the  payment  of  a  debt  and  stating  that  "  if  it  is  not  paid  at 
once  we  shall  place  the  same  with  our  lawyer  for  col- 
lection."103 

It  has  been  held,  however,  that  "outside  cover  or 
wrapper  "  does  not  include  the  outside  sheet  of  a  newspaper 


99  U.  S.  v.  Dempsey,  185  Fed.  Rep.  450  (1911).     See  also,  "  Exclu- 
sion of  Certain  Publications  from  the  Mails,"  Hearing  before  Com- 
mittee on  the  Postoffice  and  Postroads,  House  of  Representatives, 
February  i,  1915,  p.  6.     But  the  postmaster  general  in  his  Annual 
Report  of  1914,  p.  47,  appears  to  think  that  the  Swearingen  case  is 
still  controlling. 

100  Rosen  v.  U.  S.,  161  U.  S.  29  (1896). 

101  Reg.  v.  Hicklin,  L.  R.  3,  Q.  B.  360  (1868). 

102Knowles  v.  U.  S.,  170  Fed.  Rep.  409  (1909)  ;  U.  S.  v.  Bennett, 
1 6  Blatch.  343  (1879),  and  U.  S.  v.  Kennerley,  209  Fed.  Rep.  119 
(1913). 

103  u.  S.  v.  Boyle,  40  Fed.  Rep.  664  (1889). 


POWER  OF  CONGRESS  TO  ESTABLISH    POSTOFFICES          5  I 

and  thus  the  postal  authorities  are  unable  to  exclude  period- 
ical publications  on  the  ground  that  they  contain  scurrilous 
or  defamatory  matter.104  From  time  to  time  bills  have  been 
introduced  in  Congress  to  authorize  the  postmaster  general 
to  exclude  from  the  second-class  privilege  publications,  as 
such,  single  issues  of  which  are  found  to  contain  such  non- 
mailable  matter ;  but  no  favorable  action  has  ever  been  taken 
by  Congress  on  any  of  these  bills.  An  effort  has  also  been 
made  to  deny  all  postal  facilities  in  such  cases.105 

Vigorous  objection  has  been  made  to  the  validity  of  laws 
excluding  obscene  matter,  but  the  arguments  have  in  no  case 
any  authoritative  sponsorship.  One  writer,  for  example, 
urges  that  "  under  the  pretext  of  regulating  the  mails,"  Con- 
gress controls  "the  psycho-sexual  condition  of  the  postal 
patrons."  "  The  statute,"  he  goes  on  to  say,  "  furnishes  no 
standard  or  test  by  which  to  differentiate  what  book  is 
obscene  from  that  which  is  not."106  Such  a  contention,  so 
far  as  it  is  one  of  constitutional  weakness  in  Congress  is 
plainly  invalid.  Immoral  libels  are  an  offence  at  the  com- 
mon law,  "  not  because  it  is  either  the  duty  or  province  of 
the  law  to  promote  religion  or  morality  by  any  direct  means 
or  punishments,  but  because  the  line  which  must  be  drawn 
is  between  what  is  and  is  not  the  average  tone  of  morality 

104  Postmaster   General  Blair  in   1861   excluded   from  the  mails 
twelve  treasonable  publications,  "of  which  several  had  been  pre- 
viously presented  by  the  grand  jury  as  incendiary  and  hostile  to  con- 
stitutional authority."    Report  of  the  Postmaster  General,   1861,  p. 
584.    In  1914  the  postmaster  at  Greenville,  Pa.,  threw  out  of  the  mail 
several  thousand  cards  containing  facsimile  appeals  over  his  signa- 
ture by  Colonel  Roosevelt,  calling  upon  all  good  citizens  to  oppose 
Senator  Boies  Penrose.     The  local  postmaster  held  the  cards  to  be 
defamatory,  but  his   decision   was   reversed  by  the  authorities   at 
Washington.    See  N.  Y.  Sun,  October  31,  1914. 

105  See  below,  p.  158  ff. 

106  Schrpeder,  Free  Press  Anthology,  p.  171.     See  also  his  "Ob- 
scene "   Literature  and   Constitutional  Law.    In   The  Unanswered 
Argument  against  the  Constitutionality  of  the  so-called  Comstock 
Postal  Laws,  and  for  the  Inviolability  and  Free  and  Equal  Use  of 
the  United  States  Mail,  T.  B.  Wakeman  argues  that  Congress  has 
no  legislative  power  over  the  subject,  and  that  "the  power  to  sup- 
press obscenity  and  indecency,  together  with  all  other  crimes  or 
offenses  is  one  of  the  general  powers  reserved  in  the  United  States 
Constitution  to  the  people  and  the  states,"  p.  30. 


52  THE   POSTAL   POWER   OF   CONGRESS 

which  each  person  is  entitled  to  expect  at  the  hands  of  his 
neighbor  as  the  basis  of  their  mutual  dealings."107  The 
standard  to  determine  what  is  obscene  is  the  same  as  that 
which  has  prevailed  at  the  common  law. 

The  right  of  individuals  to  use  the  mails  is  not  an  abso- 
lute one ;  the  legislative  department  of  the  government  may 
impose  reasonable  restrictions  on  its  exercise.  It  may  say 
that  a  public  convenience  is  not  to  be  used  to  injure  the 
morals  of  the  citizens  and  may  exclude  such  injurious  matter, 
not  with  the  view  of  making  immorality  criminal,  but  simply 
in  order  that  the  circulation  may  not  be  encouraged  by  the 
government.  And  to  make  this  denial  of  facilities  effective, 
Congress  may  punish  violations.  The  grant  of  the  postal 
power  (to  borrow  the  language  used  by  the  Supreme  Court 
in  a  commerce  case)  "  is  complete  in  itself,"  and  "  Congress, 
as  an  incident  to  it,  may  adopt  not  only  means  necessary 
but  convenient  to  its  exercise,  and  the  means  may  have  the 
quality  of  police  regulations."  The  right  to  use  the  mails  is 
"given  for  beneficial  exercise,"  and  may  be  denied  when  it 
"is  attempted  to  be  perverted  to  and  justify  baneful 
existence."108 

With  regard  to  lotteries,  however,  the  case  is  not  so  clear. 
The  law  declared  that  "no  letter  or  circular  concerning 
[illegal]  lotteries,  so-called  gift  concerts,  or  other  similar 
enterprises,  offering  prizes,  or  concerning  schemes  devised 
and  intended  to  deceive  and  defraud  the  public,  for  the  pur- 
pose of  obtaining  money  under  false  pretenses,  shall  be 
carried  in  the  mail,"  and  made  violation  criminal.109  In 
1876  the  word  "  illegal "  was  stricken  out,  so  that  letters  or 
circulars  concerning  all  lotteries  were  prohibited,110  and  in 
1890  the  law  was  further  amended  so  as  to  include  lottery 
advertisements  in  newspapers  and  to  permit  postmasters  to 
withhold  suspected  mail.111  Trial  of  offenders  may  take 

x   107  Patterson,  Liberty  of  the  Press,  and  Public  Worship,  p.  69. 

108  Hoke  v.  U.  S.,  227  U.  S.  308  (1913).    See  "  Is  Congress  a  Con- 
servator of  the  Public  Morals  ?  ",  38  American  Law  Review,  194. 

109  R.  S.  sec.  3894. 

110  19  Stat.  L.  90. 

111 26  Stat.  L.  465;  see  also  16  Ops.  5  (1878). 


POWER  OF  CONGRESS  TO  ESTABLISH    POSTOFFICES          53 

place  either  in  the  district  where  the  letter  was  mailed,  or 
that  to  which  it  was  addressed.112 

The  Senate  Committee  in  charge  of  the  amendments  pro- 
posed in  1890,  reported  the  bill  to  be  based  "on  the  con- 
ceded power  of  the  government  to  determine  what  character 
of  matter  may  be  sent  through  the  mails ;  and  its  purpose  is 
to  protect  the  general  welfare  and  morality  of  the  people 
against  the  pernicious  effects  of  lotteries."113  For  authority 
the  committee  relied  upon  the  case  of  Phalen  v.  Virginia,  in 
which  the  Supreme  Court  said: 

"  The  suppression  of  nuisances  injurious  to  public  health 
or  morality  is  among  the  most  important  duties  of  govern- 
ment. Experience  has  shown  that  the  common  forms  of 
gambling  are  comparatively  innocuous  when  placed  in  con- 
trast with  the  widespread  pestilence  of  lotteries.  The 
former  are  confined  to  a  few  persons  and  places,  but  the 
latter  infests  the  whole  community:  it  enters  every  dwell- 
ing ;  it  reaches  every  class ;  it  preys  upon  the  hard  earnings 
of  the  poor;  it  plunders  the  ignorant  and  simple."  At 
common  law,  the  committee  argued,  the  king  could  not 
sanction  a  nuisance;  by  parity  of  reasoning  a  nuisance  may 
be  denied  governmental  encouragement.114 

All  of  the  anti-lottery  legislation,  enacted  by  Congress, 
has  been  sustained  by  the  Supreme  Court  of  the  United 
States,  although,  I  think,  the  reasoning  might  well  have  been 
more  cogent.  In  the  first  case  arising  under  the  earlier 
legislation,  the  Court  declared : 

"The  validity  of  legislation  prescribing  what  should  be 
carried,  and  its  weight  and  form  and  the  charges  to  which  it 
should  be  subjected,  has  never  been  questioned.  .  .  .  The 
power  possessed  by  Congress  embraces  the  regulation  of 


112  R.  S.  sec.  731,  and  Palliser  v.  U.  S.,  136  U.  S.  257  (1890).  This 
was  a  case  where  a  letter  was  mailed  in  New  York  and  addressed  to 
a  postmaster  in  Connecticut  to  induce  him  to  violate  his  official  duty. 
The  District  Court  for  the  district  of  Connecticut  was  declared  to 
have  jurisdiction. 

1135ist  Cong.,  ist  Sess.,  Sen.  Rep.  No.  1579;  see  also  House  Rep. 
No.  2844. 

114  8  Howard,  164  (1850). 


54  THE   POSTAL   POWER  OF   CONGRESS 

the  entire  postal  system  of  the  country.  The  right  to 
designate  what  shall  be  carried  necessarily  involves  the  right 
to  determine  what  shall  be  excluded."115  And  in  a  later 
case,  under  the  act  of  1890,  the  freedom  of  the  press  also 
being  at  issue,  the  Court  said : 

"  The  states  before  the  Union  was  formed  could  establish 
postoffices  and  postroads  and  in  doing  so  could  bring  into 
play  the  police  power  in  the  protection  of  their  citizens  from 
the  use  of  the  means  so  provided  for  purposes  supposed  to 
exert  a  demoralizing  influence  upon  the  people.  When  the 
power  to  establish  postoffices  and  postroads  was  surrendered 
to  the  Congress  it  was  as  a  complete  power,  and  the  grant 
carried  with  it  the  right  to  exercise  all  the  powers  which 
made  that  power  effective.  It  is  not  necessary  that  Congress 
should  have  the  power  to  deal  with  crime  and  immorality 
within  the  states  in  order  to  maintain  that  it  possesses  the 
power  to  forbid  the  use  of  the  mails  in  aid  of  the  perpetra- 
tion of  crime  and  immorality."116 

Counsel  for  the  petitioners  in  this  case  urged  with  con- 
siderable force  that  there  was  a  valid  distinction  between 
obscene  or  indecent  matter  and  lottery  tickets  and  advertise- 
ments, but  to  this  the  Court  replied : 

"The  argument  that  there  is  a  distinction  between  mala 
prohibita  and  mala  in  se,  and  that  Congress  might  forbid 
the  use  of  the  mails  in  promotion  of  such  acts  as  are  uni- 
versally regarded  as  mala,  in  se,  including  all  such  crimes  as 
murder,  arson,  burglary,  etc.,  and  the  offence  of  circulating 
obscene  books  and  papers,  but  cannot  do  so  in  respect  of 
other  matters  which  it  might  regard  as  criminal  or  immoral, 
but  which  it  has  no  power  itself  to  prohibit,  involves  a  con- 
cession which  is  fatal  to  the  contention  of  the  petitioners, 
since  it  would  be  for  Congress  to  determine  what  are  within 
and  what  are  without  the  rule ;  but  we  think  there  is  no  room 
for  such  a  distinction  here,  and  that  it  must  be  left  to  Con- 
gress in  the  exercise  of  a  sound  discretion  to  determine  in 

115  Ex  parte  Jackson,  96  U.  S.  727  (1878). 

116  In  Re  Rapier,  143  U.  S.  no  (1892). 


POWER  OF  CONGRESS  TO  ESTABLISH    POSTOFFICES          5$ 

what  manner  it  will  exercise  the  power  which  it  undoubtedly 
possesses." 

Special  exception  is  taken  by  Mr.  Hannis  Taylor  to  the 
doctrines  of  the  Rapier  case.  He  says :  "  The  act  against 
the  circulation  of  immoral  literature,  which  was  not  drawn 
in  a  paroxysm  of  excitement,  exhausts  the  entire  constitu- 
tional authority  over  the  intellectual  contents  of  documents 
passing  through  the  mails  that  Congress  can  exercise." 
And  referring  to  the  exclusion  of  lottery  tickets  and  adver- 
tisements :  "  This  new  born  heresy — created  to  meet  a  special 
emergency — will  be  utterly  repudiated  by  the  American 
people  the  moment  when  the  despotic  and  irresponsible 
power  over  opinion  with  which  the  fiat  of  the  Supreme 
Court  has  armed  Congress,  is  applied,  as  it  surely  will  be, 
to  some  subject  which  will  arouse  and  quicken  the  public 
conscience."117 

As  yet,  however,  there  has  been  manifested  no  disposition 
to  repeal  any  of  the  lottery  legislation.  Congress  has,  in 
fact,  made  further  exclusions,  with  slight  popular  protest. 
The  act  of  July  31,  1912,  excludes  from  interstate  com- 
merce, from  the  mails,  and  from  importation  into  the 
United  States,  "  any  film  or  other  pictorial  representation  or 
encounter  of  pugilists,  under  whatever  name,  which  is  de- 
signed to  be  used  or  may  be  used  for  purposes  of  public 
exhibition."118  This,  probably,  is  the  most  advanced  action 
yet  taken  by  Congress. 

It  should  be  noticed,  however,  in  concluding  this  review, 
that  all  articles  which  Congress  has  thus  far  excluded  from 
the  mails  have  been  inherently  different  from  the  articles 
which  may  be  transmitted,  in  that  they  may  have  a  harmful 
effect  on  other  mail  or  on  recipients.  Explosives,  liquids,  in- 
fernal machines,  intoxicating  liquors, — all  are  in  their  nature 
dangerous  to  the  mail  or  to  the  addressees.  Obscene  litera- 
ture and  lottery  tickets  are  proper  subjects  for  denuncia- 

117  "  A  Blow  at  the  Freedom  of  the  Press,"  in  155  North  American 
Review,  p.  694. 

118  Act  of  July  31,  1912;  37  Stat.  L.  240.    But  see  Keller  v.  U.  S., 
213  U.  S.  138  (1908). 


56  THE   POSTAL   POWER   OF   CONGRESS 

tion  by  the  government  and  Congress  may  attempt  to  mini- 
mize their  evil  by  denying  them  postal  facilities.  It  may  be 
said,  therefore,  that  all  prohibitory  legislation  has  had  the 
character  of  police  regulations;  each  exclusion,  when  as- 
sailed, has  been  justified  on  the  facts  of  the  particular  case, 
and  the  Supreme  Court  has  never  gone  so  far  as  has  a  lower 
federal  tribunal  in  declaring  that,  "  Congress  has  exclusive 
jurisdiction  over  the  mails  and  may  prohibit  the  use  of  the 
mails  for  the  transmission  of  any  article.  Any  article,  of 
any  description,  whether  harmless  or  not,  may,  therefore, 
be  declared  contraband  in  the  mail  by  act  of  Congress  and 
its  deposit  there  made  a  crime."119 

Fraud  Orders. — The  denial  of  postal  privileges  when  they 
are  used  to  defraud  may  be  justified  upon  the  same  grounds 
as  the  exclusion  of  obscene  matter  and  lottery  tickets ;  Con- 
gress has  authority  to  make  the  use  of  the  mails  subject  to 
police  regulations.  But  it  is  provided  that  "  the  postmaster 
general  may,  upon  evidence  satisfactory  to  him  that  any 
person  or  company  is  engaged  in  conducting  any  lottery  "12° 
or  fraudulent  scheme,  "instruct  postmasters  at  any  post- 
office  at  which  registered  letters  arrive  directed  to  any  such 
person  or  company  ...  to  return  all  such  registered  letters 
to  the  postmaster  at  the  office  at  which  they  were  originally 
mailed,  with  the  word  '  Fraudulent '  plainly  written  or 
stamped  upon  the  outsMe  thereof  "  and  they  may  be  re- 
turned to  the  writers  under  such  regulations  as  the  post- 
master general  may  prescribe.  But  under  this  section  there 
is  no  authority  to  open  any  sealed  letter.121 

The  constitutionality  of  these  provisions  has  been  fully 
established  by  the  Supreme  Court  of  the  United  States, 
which  has  held  that  the  postal  system  is  not  "a  necessary 
part  of  the  civil  government  in  the  same  sense  in  which  the 
protection  of  life,  liberty  and  property,  the  defense  of  the 

119  U.  S.  v.  Bott,  24  Fed.  Cas.  1204  (1873). 

120  As  to  what  constitutes  a  lottery  see  Eastman  v.  Armstrong 
Byrd  Music  Co.,  212  Fed.  Rep.  662  (1914)  ;  52  L.  R.  A.  n.  s.  108, 
and  note. 

121  Postal  Laws  and  Regulations  of  1913,  p.  267. 


POWER  OF  CONGRESS  TO  ESTABLISH    POSTOFFICES          5/ 

government  against  insurrection,  and  foreign  invasion  and 
the  administration  of  public  justice  are;  but  it  is  a  public 
function,  assumed  and  established  by  Congress  for  the  gen- 
eral welfare."  Thus  it  was  constitutional  to  exclude  such 
fraudulent  matter. 

As  to  other  objections,  the  Court  declared  that  due 
process  of  law  was  not  denied  when  an  executive  official 
was  given  authority  to  control  the  disposition  of  property; 
"  nor  do  we  think  the  law  unconstitutional  because  the  post- 
master general  may  seize  and  detain  all  letters,  which  may 
include  letters  of  a  purely  personal  or  domestic  character, 
and  having  no  connection  whatever  with  the  prohibited 
enterprise."  The  fact  that  the  postmaster  general  may  not 
open  letters  not  addressed  to  himself  makes  such  a  provision 
necessary  in  order  that  the  law  may  be  effective.  Finally, 
said  the  Court,  "the  objection  that  the  postmaster  general  is 
authorized  by  statute  to  confiscate  the  money,  or  the  repre- 
sentative of  the  money,  of  the  addressee,  is  based  upon  the 
hypothesis  that  the  money  or  other  article  of  value  con- 
tained in  a  registered  letter  becomes  the  property  of  the 
addressee  as  soon  as  the  letter  is  deposited  in  the  postoffice." 
But  the  postmaster  general,  in  seizing  the  letter,  does  not 
confiscate  it,  or  change  title  thereto ;  he  merely  denies  the  use 
of  the  facilities  of  the  postoffice.  It  would  be  proper  for 
Congress  to  empower  the  postmaster  general,  in  the  first 
instance,  to  refuse  to  receive  the  letter  at  all,  if  its  objection- 
able character  is  known  to  him.122 

The  sole  remaining  question  is  therefore  as  to  the  conclu- 
siveness  of  administrative  determinations  and  it  appears  that 
in  the  postoffice  cases  the  courts  have  exercised  their  powers 
of  review  further  than  in  any  others  coming  up  from  differ- 
ent executive  departments.123  The  Supreme  Court  has  sum* 
marized  the  rule  as  follows :  "  That  where  the  decision  of 

122  Public  Clearing  House  v.  Coyne,  194  U.  S.  497  (1904). 

123  See  Brinton,  "  Some  Powers  and  Problems  of  the  Federal  Ad- 
ministrative,"  University  of   Pennsylvania   Law   Review,    January, 
1913,  reprinted  as  62d  Cong.,  3d  Sess.,  Sen  Doc.  No.  1054.     See  also 
Pierce,  Federal  Usurpation,  p.  335  ff . 


58  THE   POSTAL   POWER   OF   CONGRESS 

questions  of  fact  is  committed  by  Congress  to  the  judgment 
and  discretion  of  the  head  of  a  department,  his  decision 
thereon  is  conclusive;  and  that  even  upon  mixed  questions 
of  law  and  fact,  or  of  law  alone,  his  action  will  carry  with 
it  a  strong  presumption  of  its  correctness  and  the  courts 
will  not  ordinarily  review  it,  although  they  may  have  the 
power  and  will  occasionally  exercise  the  right  of  so  doing."124 

But  it  is  necessary  that  the  facts  upon  which  the  adminis- 
trative decision  is  based  be  not  such  that  the  application  of 
the  statute  will  be  a  clear  mistake  of  law.  Thus,  in  Ameri- 
can Magnetic  School  of  Healing  v.  Me  Annuity,  the  post- 
master general  in  effect  made  a  fraud  order  depend  on  his 
opinion  as  to  the  efficacy  of  the  complainant's  method  of 
healing  by  encouraging  the  proper  use  of  the  mind  to  cor- 
rect physical  ailments.  The  court  ruled  that  under  no  con- 
struction was  there  evidence  sufficient  to  show  fraud.  "  To 
authorize  the  interference  of  the  postmaster  general,"  said 
the  decision,  "the  facts  stated  must,  in  some  aspect,  be 
sufficient  to  permit  him,  under  the  statutes,  to  make  the 
order."125  Or,  expressed  differently,  if  it  is  "legally  im- 
possible" under  any  interpretation  of  the  facts,  "to  hold 
that  the  complaining  party  was  engaged  in  obtaining  money 
through  the  mails  by  false  or  fraudulent  representations," 
the  courts  will  intervene.126  The  general  rule  may,  there- 
fore, be  stated  as  follows:  Judicial  review  will  be  granted 
only  in  those  cases  where  it  appears  that  the  order  is  with- 
out legal  authority;  exercise  of  discretion  will  not  be  re- 
viewed unless,  upon  any  construction  of  the  facts,  the  order 
is  clearly  wrong,  and  even  upon  questions  of  law  alone,  it 
will  carry  a  strong  presumption  of  correctness. 

A  number  of  proposals  have  been  made  and  bills  intro- 
duced in  Congress  to  provide  for  a  judicial  review  of  the 
postmaster  general's  decisions.  Congressman  Crumpacker, 

124  Bates  &  Guild  Co.  v.  Payne,  194  U.  S.  106  (1904). 

125  American  School  of  Magnetic  Healing  v.  McAnnulty,  187  U.  S. 
94  (1902). 

126  Missouri  Drug  Co.  v.  Wyman,  129  Fed.  Rep.  623  (1904).    See 
also  U.  S.  ex  rel.  Reinach  v.  Cortelyou,  28  App.  D.  C.  570  (1906), 
12  L.  R.  A.  n.  s.  166,  and  note. 


POWER  OF  CONGRESS  TO  ESTABLISH    POSTOFFICES          59 

for  instance,  argued  "  that  in  all  departments  of  government 
there  is  no  instance  where  substantial  rights  are  taken  from 
a  citizen  upon  confidential  reports  without  a  legal  right  to  be 
heard  and  to  see  and  examine  the  evidence  that  is  submitted 
against  him,  aside  from  the  fraud  order  and  practice  in  the 
postoffice  department."127  He  urged  that  the  law  should 
be  changed  and  a  copy  of  the  order  served  on  the  concern 
suspected  of  fraudulent  practices.  This  order  should  not 
become  operative  for  fifteen  days,  except  to  the  extent  of 
holding  the  mail  undelivered  in  the  postoffice.  The  aggrieved 
party  could  file  a  bill  in  the  circuit  court  with  a  bond  of 
$500  and  a  summary  trial  at  law  would  be  held  upon  the 
issue,  which  the  court  should  formulate  upon  the  facts  in- 
volved. Appeal  would  lie  and  pending  final  action  the  mail 
would  be  held  in  the  postoffice  or  disposed  of  by  order  of 
the  court.  Another  bill  authorized  a  review  after  the  orders 
had  been  issued. 

Vigorous  objection  to  such  changes  in  the  law  was  made 
by  the  postoffice  authorities.  A  memorandum  filed  by  the 
assistant  attorney  general  for  the  department128  declared 
that  the  prime  object  of  the  regulations  was  to  secure 
summary  action.  "The  value  of  the  law  depends  upon 
the  promptness  with  which  schemes  to  defraud  may  be 
denied  the  use  of  the  mails  to  further  the  swindle.  If  ac- 
tion is  delayed  any  considerable  time, — as  would  necessarily 
be  the  case  in  a  judicial  proceeding, — the  scheme  will  con- 
summate its  fraud  before  the  interference  occurs."  If  Mr. 
Crumpacker's  bill  became  law,  the  only  effectual  action 
would  be  criminal  prosecution,  and  this  is  always  difficult 
since  the  victimized  parties  live  at  a  distance,  and  it  is  hard 
to  get  evidence  to  offer  at  the  trial. 

In  practice,  the  memorandum  explained,  investigations  are 
made  by  inspectors  of  cases  where  fraudulent  practices  are 

127  Statement  of  Hon.  E.  D.  Crumpacker  before  the  House  of  Rep- 
resentatives Committee  on  the  Judiciary,  May  25,  1906,  in  support  of 
H.  R.  16548. 

128  Memorandum  by  the  Assistant  Attorney  General  for  the  Post- 
office  Department  on  Postal  "Fraud  Order"  Law  (1906). 


6O  THE   POSTAL   POWER   OF   CONGRESS 

alleged,  and  reports  sent  to  the  department.  If  a  prima 
facie  case  of  fraud  is  established,  the  person  or  concern  in- 
volved is  notified  and  given  an  opportunity  to  appear  before 
the  assistant  attorney  general  for  the  postoffice  department ; 
after  the  hearing  a  report  is  made  to  the  postmaster  gen- 
eral who  takes  final  action.  But  such  a  hearing  is  not  re- 
quired by  the  statute.129 

The  codification  of  postal  laws  presented  to  Congress  in 
1908,  provided  for  the  creation  of  a  Commission  of  Postal 
Appeals,  to  consist  of  three  members,  one  of  whom  must  be 
a  lawyer,  appointed  by  the  President.  One  of  its  duties 
would  be  to  "  pass  upon  the  issuance  of  fraud  orders  against 
persons  alleged  to  be  conducting  lotteries,  gift  enterprises,  or 
schemes  to  defraud."  Cases  would  be  submitted  by  the 
assistant  attorney  general  upon  his  being  satisfied  that  the 
evidence  was  legally  sufficient  to  justify  the  order  which  the 
Commission  would  issue  or  refuse  after  a  hearing;  provi- 
sional action,  however,  could  be  taken,  and  pending  final 
determination,  the  mail  matter  could  be  held  in  the  post- 
office.130 

129  "  It  must  also  be  borne  in  mind  that  the  idea  of  the  fraud  order 
law  is  not  punitive,  but  is  simply  protective.    It  is  to  prevent  the  use 
of  the  mails  to  defraud  the  public.    The  theory  is  that  by  the  stop- 
ping of  the  mail  privileges  in  the  initiating  stages  of  the  fraud,  the 
consummation  of  the  scheme  will  be  prevented.     It  would  be  utterly 
impossible  to  fulfill  this  purpose  by  a  trial  in  court,  for  the  necessary 
legal  evidence  could  not  generally  be  obtained  until  the  scheme  had 
run  its  course."    Ibid.,  p.  6. 

130  Final  Report  of  the  Joint  Commission  on  the  Business  Method 
of  the  Postoffice  Department  and  the  Postal  Service  (December  17, 
1908),  6oth  Cong.,  2d  Sess.,  Sen.  Rep.  No.  701,  chap.  4,  sees.  90-99. 


CHAPTER   III 
THE  POWER  OF  CONGRESS  TO  ESTABLISH  POSTROADS 

Legislative  Action. — Apart  from  the  postoffice,  problems 
of  road  construction  and  internal  improvements,  by  the 
necessities  of  development,  almost  immediately  confronted 
the  new  nation,  which  scanned  the  delegated  powers  in  the 
Federal  Constitution,  and  not  finding  any  specific  authoriza- 
tion of  congressional  action,  asserted  the  right  upon  several 
clauses,  among  them  being  the  one  to  establish  postroads. 
By  1793  there  were  only  one  hundred  and  ninety-five  post- 
offices  throughout  the  country1  and  communication  was  in 
a  deplorable  condition,  what  roads  there  were  being  little 
more  than  paths  and  quite  impassable  for  wheeled  vehicles. 
Yet  communication  was  of  the  utmost  importance,  and 
especially  was  this  true  in  respect  to  the  West,  it  being 
thought  that  commercial  and  political  development,  if  not 
actual  retention,  was  impossible  without  easier  means  of 
access.  Some  road  construction  had  been  accomplished  by 
private  initiative  with  state  aid,  but  the  problem  was  not 
really  attacked,  and  when  in  1792  Congress  established  a 
postroute  between  Richmond,  Va.,  and  Danville,  Ky.,  and 
later  one  between  Philadelphia,  Pittsburgh,  and  Louisville,2 
the  West  became  jealous  of  the  facilities  accorded  the  East. 
This  feeling  was  encouraged  by  the  Atlantic  States  being  per- 
mitted by  Congress  to  levy  tonnage  duties  in  order  to  effect 
the  improvement  of  rivers  and  harbors.3  Appropriations 
had  also  been  made  by  Congress  for  lighthouses,  etc.,  and 
soon  the  demands  of  the  Western  States  were  too  strong  to 
be  resisted.  In  1806  Congress  was  forced  to  take  definite 
action.* 

1  American  State  Papers,  vol.  xv  (Postoffice),  p.  28. 

2  i  Stat.  L.  233. 

3  Lalor,  Encyclopaedia  of  Political  Science,  vol.  ii,  p.  556. 
*  i  Stat.  L.  251. 

61 


62  THE   POSTAL   POWER   OF   CONGRESS 

The  constitutional  problem,  however,  had  for  some  time 
engaged  the  attention  of  the  leading  statesmen ;  all  admitted 
the  necessity  for  federal  aid,  but  the  power  of  Congress 
was  seriously  questioned.  In  his  first  annual  address 
Washington  urged  the  encouragement  of  "intercourse  be- 
tween the  distant  parts  of  our  country  by  a  due  attention  to 
the  postoffice  and  postroads,"5  and  repeated  this  recom- 
mendation in  later  addresses.6  Chief  Justice  Jay  had  in 
1790  given  Washington  his  opinion,  certainly  entitled  to 
great  weight,  that  "the  Congress  have  power  to  establish 
postroads.  This  would  be  nugatory  unless  it  implied  a 
power  to  repair  these  roads  themselves,  or  compel  others  to 
do  it.  The  former  seems  to  be  the  more  natural  construc- 
tion. Possibly  the  turnpike  plan  might  gradually  and  use- 
fully be  introduced."7 

But  there  were  also  many  who  held  to  a  stricter  con- 
struction of  the  Constitution.  Jefferson  was  doubtful. 
Writing  to  Madison  in  1796  he  asked :  "  Does  the  power  to 
establish  postroads  given  you  by  Congress,  mean  that  you 
shall  make  the  roads,  or  only  select  from  those  already 
made  those  on  which  there  shall  be  a  post  ?  "  The  one  con- 
struction would  give  Congress  enormous  powers ;  the  other, 
if  inadequate,  could  be  referred  to  the  states  for  action.8 

The  question  of  federal  power  was  first  definitely  raised 
in  1806  when  the  demands  of  the  Western  States  became 
irresistible  and  Congress  began  the  construction  of  the 
Cumberland  Road,  the  famous  highway  which  was  to  figure 
in  the  economic  and  political  history  of  the  United  States 
for  the  next  half  century,  and  to  arouse  acute  discussion  as 
to  the  meaning  of  the  postal  clause.9  Ohio  was  admitted  as 

5  Richardson,  vol.  i,  p.  66. 

6  Ibid.,  pp.  83,  107. 

7  Correspondence  and  Public  Papers  of  John  Jay  (Ed.  Johnston), 
vol.  iii,  p.  407. 

8  Jefferson,  Writings  (Ed.  Ford),  vol.  vii,  p.  63. 

9  In  the  discussion  of  this  undertaking  and  its  relation  to  the  post- 
office  clause  of  the  Constitution,   I  have  derived  much  assistance 
from  Professor  J.  S.  Young's  "  A  Political  and  Constitutional  Study 
of  the  Cumberland  Road"    (University  of  Chicago   Press,    1904), 
although  this  only  incidentally  considers  the  inquiry  which  my  essay 
attempts. 


POWER   OF   CONGRESS   TO   ESTABLISH    POSTROADS  63 

a  state  in  1802  and  the  opportunity  was  seized  to  make  a 
mutually  advantageous  arrangement  by  which  the  United 
States  would  retain  the  same  rights  as  to  the  public  domain 
which  it  possessed  while  Ohio  was  yet  a  territory  (control  of 
lands  as  yet  unpaid-for  and  suspension  of  state  taxes),  and 
on  the  other  hand,  as  a  quid  pro  quo,  a  percentage  of  the 
proceeds  derived  from  the  sale  of  certain  of  the  lands, 
should  be  applied  to  defray  the  cost  of  road  construction 
under  the  auspices  of  the  general  government.  Such  an 
arrangement  was  first  proposed  by  Gallatin10  who  urged 
"  that  one  tenth  part  of  the  net  proceeds  of  the  lands  here- 
after sold  by  Congress  shall,  after  deducting  all  expenses 
incident  to  the  same,  be  applied  towards  laying  out  and 
making  turnpike  roads  .  .  .  under  the  authority  of  Con- 
gress, with  the  consent  of  the  several  states  through  which 
the  same  shall  pass."11 

The  next  action  came  three  years  later  when  Congress 
authorized  the  President  to  appoint  a  commission  to  lay  out 
the  road;12  consent  to  the  construction  had  already  been 
given  by  the  legislatures  of  Maryland  and  Virginia,  but  not 
by  that  of  Pennsylvania.13  Maryland's  authorization  for 
the  improvement  of  postroads  within  the  state  was  given  in 
1803  and  contained  a  limitation  to  the  effect  that  Congress 
was  not  thereby  given  the  power  "to  cut  down  or  use  the 
timber  or  other  material  of  any  person  or  persons  against 
his,  her,  or  their  consent,"14 — an  explicit  denial  of  the  right 
of  eminent  domain  in  connection  with  the  postal  power. 

In  January,  1807,  Jefferson  received  the  report  of  the 
commission  appointed  to  locate  the  road,  but  the  President 
withheld  either  acceptance  or  disapproval  until  he  should  re- 

10  Gallatin,  Writings  (Ed.  Adams),  vol.  i,  p.  76;  Letter  to  William 
B.  Giles,  chairman  of  the  House  of  Representatives  Committee  for 
admitting  the  North  Western  Territory  into  the  Union. 

11  The  proposed  road  fund  of  10  per  cent.,  however,  was  by  the 
act  which  Congress  passed  on  March  3,  1803,  reduced  to  5  per  cent, 
with  some  restrictions  as  to  expenditure  within  the  state.    2  Stat. 
L.  226. 

12  2  Stat.  L.  357;  Act  of  March  29,  1806. 

13  Young,  The  Cumberland  Road,  21. 

14  Laws  of  Maryland,  1802-1804,  ch.  115. 


64  THE   POSTAL   POWER   OF   CONGRESS 

ceive  "full  consent  to  a  free  choice  of  route  through  the 
whole  distance."15  When  Pennsylvania  acted,  its  legislature 
detailed  the  powers  which  the  United  States  might  exercise, 
and  stipulated  that  persons  whose  property  should  be  taken 
must  be  given  compensation ;  but  this  was  sufficient  for  the 
"  full  consent "  which  Jefferson  demanded  before  the  under- 
taking could  be  begun. 

Even  with  these  limitations  congressional  action  as  to 
postroads  had  not  been  taken  without  some  doubts  as  to  its 
constitutionality ;  yet  the  demands  for  federal  aid  were  so 
great  and  the  responses  so  meagre  that  serious  objection  was 
not  made.  In  spite  of  the  fact  that  he  had  sanctioned  ap- 
propriations for  the  improvement  of  a  canal  in  Louisiana 
and  a  road  from  the  Georgia  frontier  to  New  Orleans,18 
Jefferson  thought  that  the  postal  clause  did  not  grant  ade- 
quate power  for  the  construction  of  roads  by  Congress.17 
In  his  sixth  annual  message  (after  the  passage  of  the  Cum- 
berland Road  bill)  he  urged  that  the  treasury's  surplus 
should  be  applied  "  to  the  great  purposes  of  the  public  educa- 
tion, roads,  canals,  and  such  other  objects  of  public  improve- 
ment as  it  may  be  thought  proper  to  add  to  the  constitutional 
enumeration  of  federal  powers/'  but  supposed  that  a  con- 
stitutional amendment  would  be  necessary.18  Two  years 
later  the  growing  surplus  led  him  to  return  to  the  same 
theme.  "  Shall  the  revenue  be  reduced  ?  "  he  asked.  "  Or 
shall  it  rather  be  appropriated  to  the  improvement  of  roads, 
canals,  rivers,  education,  and  other  great  foundations  of 
prosperity  and  union,  under  the  powers  which  Congress  may 
already  possess,  or  such  amendment  of  the  Constitution 
as  may  be  approved  by  the  states.  While  uncertain  of  the 
course  of  things  the  time  may  be  advantageously  employed 


15  Miscellaneous  State  Papers,  vol.  i,  p.  474 ;  Young,  The  Cumber- 
land Road,  p.  41. 

16  2  Stat.  L.  397,  516. 

17  On  August  31,  1806,  Jefferson  wrote  to  Gallatin,  commenting  on 
the  latter's  plan  for  internal  improvements,  with  a  word  of  sugges- 
tion as  to  branches,  "  if  it  be  lawful  and  advisable  to  extend  our 
operations  to  them."      Jefferson,  Writings  (Ed.  Ford),  vol.  viii,  p.  466. 

18  Richardson,  vol.  i,  p.  409 ;  Jefferson,  vol.  viii,  p.  494. 


POWER   OF   CONGRESS   TO   ESTABLISH    POSTROADS  65 

in  obtaining  the  powers  necessary  for  a  system  of  improve- 
ment should  that  be  thought  best."19 

It  was  not,  however,  until  during  Madison's  administra- 
tion that  the  question  was  to  become  an  acute  one.  Under 
Washington  and  Adams  there  had  been  no  appropriations 
for  roads;  under  Jefferson  Congress  had  given  money  for 
the  Cumberland  Road,  for  a  route  from  the  frontier  of 
Georgia  to  New  Orleans  and  a  canal  in  Louisiana.20  But 
under  Madison  eleven  acts  were  passed  by  Congress21  and 
these  caused  an  exhaustive  and  sometimes  acrimonious  dis- 
cussion of  the  constitutional  principles  involved,  with  the 
intervention  of  the  President  through  admonitory  messages 
and  one  veto,  on  the  day  before  he  was  to  give  up  his  office. 

Madison's  opinion  as  to  whether  the  Constitution  had 
given  Congress  the  power  to  undertake  the  construction  of 
roads  seems  not  to  have  been  absolutely  consistent.  Writ- 
ing in  The  Federalist,  he  had  urged  as  one  of  the  advantages 
that  the  adoption  of  the  Constitution  would  insure  the  fact 
that  "intercourse  throughout  the  union  will  be  facilitated 
by  new  improvements.  Roads  will  everywhere  be  shortened, 
and  kept  in  better  order;  accommodations  for  travellers 
will  be  multiplied  and  meliorated ;  .  .  .  The  communication 
between  the  western  and  Atlantic  districts,  and  between  dif- 
ferent parts  of  each,  will  be  rendered  more  and  more  easy  by 
those  numerous  canals  with  which  the  beneficence  of  nature 
has  intersected  our  country,  and  which  art  finds  it  so  little 
difficult  to  connect  and  complete."22 

On  February  5,  1796,  in  the  House,  Madison  offered  a 
resolution  authorizing  the  President  to  have  made  a  survey 
of  the  postroad  from  Maine  to  Georgia,  the  expense  being 
borne  by  the  United  States.23  Two  good  effects,  said 

19  Richardson,  vol.  i,  p.  456;  Jefferson,  vol.  ix,  p.  224. 

2»2  Stat.  L.  357,  397- 

21  A  convenient  list  of  these  and  of  later  laws  is  to  be  found  in 
E.  C.  Nelson,  "  Presidential  Influence  on  the  Policy  of  Internal  Im- 
provements," Iowa  Journal  of  History  and  Politics,  vol.  iv,  App.  A 

(P.  53  ff). 

The  Federalist,  No.  14. 

23  Annals  of  4th  Congress,  ist  Sess.,  pp.  297,  314.     A  bill  author- 
izing the  survey  passed  the  House  on  May  20.     Ibid.,  p.  1415. 
5 


66  THE   POSTAL   POWER   OF   CONGRESS 

Madison,  would  accrue ;  "  the  shortest  route  from  one  place 
to  another  would  be  determined  upon,  and  persons,  having 
a  certainty  of  the  stability  of  the  roads,  would  not  hesitate 
to  make  improvements  on  them."  It  was  to  be  the  "com- 
mencement of  an  extensive  work  " ;  and  during  his  admin- 
istration Madison  approved  acts  which  appropriated  over 
$500,000,  most  of  it  for  the  Cumberland  Road.24 

There  had  been,  it  is  true,  an  intimation  of  a  changed 
attitude  when,  in  his  seventh  annual  message  (December  5, 
1815),  although  strongly  recommending  the  construction  of 
roads  and  canals  under  national  authority,  he  called  it  "a 
happy  reflection  that  any  defect  of  constitutional  authority 
which  may  be  encountered  can  be  supplied  in  a  mode  which 
the  Constitution  itself  has  providently  pointed  out."25  A 
year  later  he  asked  Congress  to  exercise  its  existing  powers, 
and,  if  necessary,  to  resort  "  to  the  prescribed  mode  of  en- 
larging them,  in  order  to  effectuate  a  comprehensive  system 
of  roads  and  canals,  such  as  will  have  the  effect  of  draw- 
ing more  closely  together  every  part  of  our  country."26 

Madison's  decisive  stand,  however,  was  to  be  taken  on  the 
so-called  "  bonus  bill,"  the  purpose  of  which  was  to  provide 
a  permanent  fund  for  road  construction.  In  the  famous 
report  which  Gallatin  had  prepared  for  the  Senate  (April 
6,  1808),  he  had  denied  any  right  of  eminent  domain  inher- 
ing in  the  United  States  and  had  declared  that  no  road  or 
canal  could  be  opened  without  the  consent  of  the  states  con- 
cerned. This  fact,  Gallatin  argued,  necessarily  controlled 
the  manner  of  expenditure  (in  the  absence  of  constitutional 
amendment).  He  suggested  two  expedients:  congressional 
undertakings  with  the  consent  of  the  states,  or  subscriptions 
by  Congress  to  the  shares  of  companies  incorporated  for 
the  purpose  of  building  highways.27  Concerning  Gallatin's 
second  alternative,  no  action  was  taken  for  two  years.  In 

2*2  Stat.  L.  555,  661,  668,  670,  730,  829;  3  Stat.  L.  206,  282,  315, 
318,  377. 

5  Richardson,  vol.  i,  p.  567. 

28  Richardson,  vol.  i,  p.  576;  see  Farrand,  vol.  iii,  p.  463. 
27  Miscellaneous  State  Papers,  vol.  i,  p.  741. 


POWER   OF   CONGRESS   TO   ESTABLISH   POSTROADS  6/ 

1810,  however,  a  Senate  committee  reported  favorably  a 
blanket  bill  which  would  make  the  government  owner  of 
one  half  the  stock  in  any  corporation  formed  to  carry  out 
the  projects  recommended  by  Gallatin  in  his  report.28  But 
the  theory  of  the  "  bonus  bill "  was  radically  different. 

It  was  reported  in  the  House  by  a  special  committee  of 
which  Calhoun  was  chairman,  and  set  aside  the  $1,500,000 
bonus  which  was  to  be  paid  by  the  United  States  Bank  for 
its  charter,  together  with  the  dividend  arising  from  the  stock 
held  by  the  government;  there  would  thus  be  provided  a 
permanent  fund  for  the  construction  of  roads  and  canals. 

The  chief  argument  in  support  of  the  bill  was  made  by 
Calhoun.29  He  expressed  no  opinion  as  to  the  validity  of 
the  objection  that  Congress  had  not  the  power  to  cut  a  road 
through  a  state  without  its  consent.  The  proposed  bill  did 
not  raise  that  question.  But,  said  Calhoun,  "the  Constitu- 
tion gives  to  Congress  the  power  to  establish  postoffices  and 
postroads.  I  know  that  the  interpretation  usually  given  to 
these  words  confines  our  powers  to  that  of  designating  only 
the  postroads ;  but  it  seems  to  me  that  the  word  '  establish ' 
comprehends  something  more,"  it  would  seem  to  give  Con- 
gress the  right  to  construct.  Calhoun's  argument  is  not  a 
closely  reasoned  one  and  does  not  carry  conviction  in  all 
respects ;  nevertheless,  his  main  point  upon  which  he  lays 
chief  weight, — that  the  appropriation  of  money  by  Congress 
is  not  confined  to  the  furtherance  of  those  powers  enumer- 
ated in  the  Constitution, — was  well  taken.30 

The  bill  was  passed  by  Congress,31  not,  however,  without 
many  doubts  being  expressed  as  to  its  constitutionality,32 
and  went  to  President  Madison  at  the  very  close  of  his  ad- 
ministration. Madison  did  not  resort  to  a  pocket  veto  and 
on  March  3,  1817,  sent  a  message  to  Congress  giving  the 
grounds  for  his  objections  to  the  measure.  He  held  that 

28  Annals  of  nth  Congress,  vol.  ii,  pp.  1401,  1443. 

29  Calhoun,  Works,  vol.  ii,  p.  193. 

30  See  below,  p.  75. 

31  Annals  of  I4th  Congress,  26.  Sess.,  p.  191. 

32  Ibid.,  pp.  177,  191. 


68  THE   POSTAL   POWER   OF   CONGRESS 

the  act  could  not  be  justified  under  the  commerce  or  general 
welfare  clauses,  but  made  no  use  of  the  postal  power  as  a 
possible,  if  not  adequate  source  of  authority.  He  said : 

"  If  a  general  power  to  construct  roads  and  canals,  and  to 
improve  the  navigation  of  water  courses,  with  the  train  of 
powers  incident  thereto,  be  not  possessed  by  Congress,  the 
assent  of  the  states  in  the  mode  provided  in  the  bill  cannot 
confer  the  power.  The  only  cases  in  which  the  consent  and 
cession  of  particular  states  can  extend  the  power  of  Congress 
are  those  specified  and  provided  for  in  the  Constitution."33 

In  this  message  Madison  did  not  clearly  suggest  a  distinc- 
tion between  the  simple  power  to  appropriate,  to  appropriate 
and  construct,  with  the  consent  of  the  states,  and  to  con- 
struct against  the  will  of  local  jurisdictions.  Before  reach- 
ing the  conclusion  quoted  above,  he  had  used  this  ambigu- 
ous language:  "  A  restriction  of  the  power  'to  provide  for 
the  common  defense  and  general  welfare*  to  cases  which 
are  to  be  provided  for  by  the  expenditure  of  money  would 
still  leave  within  the  legislative  power  of  Congress  all  the 
great  and  important  measures  of  government,  money  being 
the  ordinary  and  necessary  means  of  carrying  them  into 
execution."3*  Madison  declared  later  that  his  veto  con- 
templated the  appropriation  as  well  as  construction;  yet 
during  his  tenure  he  sanctioned  measures  providing  funds 
for  various  roads.35 

33  Richardson,  vol.  i,  p.  585 ;  Mason,  The  Veto  Power,  p.  95.    Jef- 
ferson  wrote   in    1817   that  the   President's   veto   was   on   "sound 
grounds ;  that  instrument  not  having  placed  this  among  the  enumer- 
ated objects  to  which  they  are  authorized  to  apply  the  public  con- 
tributions," and  called  the  veto  "  a  fortunate  incident."    Jefferson, 
Writings  (Ed.  Ford),  vol.  x,  pp.  81,  91. 

34  Richardson,  vol.  i,  p.  585. 

35  As  late  as  1830  Madison  wrote :  "  I  observe  that  the  President, 
in  his  late  veto,  has  seen  in  mine  of  1817,  against  internal  improve- 
ments by  Congress,  a  concurrence  in  the  power  to  appropriate  money 
for  the  purpose.     Not  finding  the  message  which  he  cites,  I  can  only 
say  that  my  meaning  must  have  been  unfortunately  expressed  or  is 
very  strangely  misinterpreted.    The  veto  on  my  part  certainly  con- 
templated the  appropriation  of  money  as  well  as  the  operative  and 
jurisdictional  branches  of  the  power.    And,  as  far  as  I  have  refer- 
ence to  the  message,  it  has  never  been  otherwise  understood."    Let- 
ters and  Other  Writings  of  James  Madison,  vol.  iv,  p.  86. 


POWER   OF   CONGRESS   TO   ESTABLISH    POSTROADS  69 

This  distinction  which  Calhoun  pointed  out,  and  concern- 
ing which,  in  his  message  at  least,  Madison  was  vague,  was 
to  be  stressed  by  Monroe  and  by  Congress  in  the  exhaustive 
debates  upon  the  nature  and  extent  of  the  power  that  the 
federal  government  possessed.36  Monroe  did  not  delay  in 
making  known  his  attitude  and  went  directly  to  the  point 
in  his  first  annual  message  when  he  said : 

"  Disregarding  early  impressions,  I  have  bestowed  on  the 
subject  all  the  deliberation  which  its  great  importance  and  a 
just  sense  of  my  duty  required,  and  the  result  is,  a  settled 
conviction,  in  my  mind,  that  Congress  do  not  possess  the 
right.  ...  In  communicating  this  result,  I  cannot  resist  the 
obligation  which  I  feel,  to  suggest  to  Congress  the  propriety 
of  recommending  to  the  states  the  adoption  of  an  amend- 
ment to  the  Constitution,  which  shall  give  Congress  the  right 
in  question."37 

This  portion  of  President  Monroe's  message  was  re- 
ferred to  a  special  committee  in  the  House  of  Representa- 
tives which  reported  on  December  15,  1817,  in  an  able  docu- 
ment.38 The  problem,  said  the  committee,  involved  "a 
great  constitutional  question  on  the  one  hand,"  and  was 
"  intimately  connected  on  the  other,  with  the  improvement, 
the  prosperity,  the  union,  and  the  happiness  of  the  United 
States."  It  was  argued,  in  brief,  that  Congress  had  the 
power :  "  I .  To  lay  out,  improve,  and  construct  postroads 
through  the  several  states,  with  the  assent  of  the  respective 

36  Before  his  annual  message  Monroe  wrote  to  Madison :  "  The 
question  respecting  canals  and  roads  is  full  of  difficulty,  growing 
out  of  what  has  passed  on  it.     After  all  the  considerations  I  have 
given  it,  I  am  fixed  in  the  opinion,  that  the  right  is  not  in  Congress, 
and  that  it  would  be  improper  in  me,  after  your  negative,  to  allow 
them  to  discuss  the  subject  and  bring  in  a  bill  for  me  to  sign  in  the 
expectation  that  I  would  do  it.    I  have  therefore  decided  ...  to 
recommend  the  procuring  of  an  amendment  from  the  states,  so  as  to 
vest  the  right  in  Congress."    Writings  of  James  Monroe,  vol.  vi, 
p.  32.     Madison  replied,  approving  this  course.    "  The  expediency  of 
vesting  in  Congress,"  he  said,  "a  power  as  to  roads  and  canals,  I 
have  never  doubted,  and  there  has  never  been  a  moment  when  such 
a  proposition  to  the  states  was  so  likely  to  be  approved."    Letters 
...  of  James  Madison,  vol.  iii,  p.  50. 

37  Richardson,  vol.  ii,  p.  18. 

38  Annals  of  15th  Congress,  1st  Sess.,  vol.  i,  p.  451. 


7O  THE   POSTAL   POWER   OF   CONGRESS 

states.  2.  To  open,  construct,  and  improve  military  roads 
through  the  several  states,  with  the  assent  of  the  respective 
states.  3.  To  cut  canals  through  the  several  states,  with 
their  assent.  .  .  .  " 

Such  powers  were  not  based,  it  was  contended,  on  a  liberal 
construction  of  the  Constitution,  nor  were  they  dangerous 
in  tendency  and  capable  of  working  an  injury  to  the  states, 
for  there  was  no  recognition  of  a  right  of  eminent  domain 
or  of  congressional  supremacy  in  respect  to  jurisdiction. 
Considering  specifically  the  extent  of  the  postal  power  the 
committee  said : 

"  That  Congress,  with  the  assent  of  the  states  respectively, 
may  construct  and  improve  their  postroads,  under  the  power 
'  to  establish  postoffices  and  postroads '  seems  to  be  manifest 
both  from  the  nature  of  things  and  from  analogous  con- 
structions of  the  Constitution.  It  has  been  contended,  in- 
deed, that  the  word  establish,  in  this  clause  of  the  instru- 
ment, comprehends  nothing  more  than  a  mere  designation 
of  postroads.  But  if  this  be  true,  the  important  powers 
conferred  on  the  general  government  in  relation  to  the  post- 
office,  might  be  rendered  in  a  great  measure  inefficient  and 
impracticable.  ...  If  the  power  to  establish  confers  only 
the  authority  to  designate,  Congress  can  have  no  right  either 
to  keep  a  ferry  over  a  deep  and  rapid  river  for  the  trans-^ 
portation  of  the  mails,  or  to  compel  the  owners  of  a  ferry 
to  perform  that  service;  and  yet  our  laws  contain  an  act, 
acquiesced  in  for  more  than  twenty  years,  imposing  penal- 
ties on  ferrymen  for  detaining  the  mail  and  on  other  persons 
for  retarding  or  obstructing  its  passage.  It  would  be  diffi- 
cult to  discover  how  this  power  of  imposing  penalties  can 
be  supported,  either  as  an  original  or  accessory  power  except 
upon  principles  of  more  liberal  construction  than  those  now 
advanced.  .  .  . 

"  The  authority  which  is  conferred  by  the  Constitution  to 
make  all  laws  which  shall  be  *  necessary  and  proper*  for 
carrying  into  execution  the  enumerated  powers,  is  believed 
to  vest  in  the  general  government  all  the  means  which  are 


POWER   OF   CONGRESS   TO   ESTABLISH    POSTROADS  /I 

essential  to  the  complete  enjoyment  of  the  privilege  of 
'  establishing  postoffices  and  postroads ! '  Even  without  this 
clause  of  the  Constitution  the  same  principle  would  have  to 
be  applied  to  its  construction,  since  according  to  common 
understanding  the  grant  of  a  power  implies  a  grant  of  what- 
ever is  necessary  to  its  enjoyment.  .  .  . 

"  It  is  indeed  from  the  operation  of  these  words  '  necessary 
and  proper '  in  the  clause  of  the  Constitution  which  grants 
accessory  powers,  that  the  '  assent  of  the  respective  states ' 
is  conceived  a  prerequisite  to  the  improvement  even  of  post- 
roads.  For,  however  '  necessary  '  such  improvements  might 
be,  it  might  be  questioned  how  far  an  interference  with  the 
state  jurisdiction  over  its  soil,  against  its  will,  might  be 
'  proper/  Nor  is  this  instance  of  an  imperfect  right  in  the 
general  government  without  an  analogy  in  the  Constitution ; 
the  power  of  exercising  jurisdiction  over  forts,  magazines, 
arsenals,  and  dockyards,  depending  upon  previous  purchase 
by  the  United  States  with  the  consent  of  the  states. 

"Admitting  then,  that  the  Constitution  confers  only  a 
right  of  way,  and  that  the  rights  of  soil  and  jurisdiction 
remain  exclusively  with  the  states  respectively,  yet  there 
seems  to  be  no  sound  objection  to  the  improvement  of  roads 
with  their  assent." 

In  the  long  debate  which  followed  this  report  upon  the 
President's  message,  the  opinions  expressed  veered  between 
ultra-conservative  and  ultra-liberal  positions.  A  middle 
ground  was  taken  by  Clay,  whose  speeches  are  perhaps  the 
best  on  the  subject.39  He  was  a  stanch  supporter  of  the 
committee's  report,  contending  "  that  the  power  to  construct 
postroads  is  expressly  granted  in  the  power  to  establish 
postroads."  "  If  it  be,"  he  said,  "  there  is  an  end  to  the 
controversy.  ...  To  show  that  the  power  is  expressly 
granted,  I  might  safely  appeal  to  the  arguments  already  used 
to  prove  that  the  word  establish,  in  this  case,  can  mean  only 
one  thing, — the  right  of  making."  According  to  Clay,  "to 
establish  justice"  as  used  in  the  preamble  of  the  Constitu- 

39  Annals  of  isth  Cong.,  ist  Sess.,  vol.  ii,  p.  1366. 


72  THE   POSTAL   POWER   OF   CONGRESS 

tion,  did  not  compel  Congress  to  adopt  the  systems  then 
existing.  "Establishment  means  in  the  preamble,  as  in 
other  cases,  construction,  formation,  creation." 

When  it  is  considered  that  "under  the  old  Articles  of 
Confederation,  Congress  had  over  the  subject  of  postroads 
as  much  power  as  gentlemen  allow  to  the  existing  govern- 
ment, that  it  was  the  general  scope  and  spirit  of  the  new 
Constitution  to  enlarge  the  powers  of  the  general  govern- 
ment, and  that,  in  fact,  in  this  very  clause,  the  power  to 
establish  postroads  is  superadded  to  the  power  to  establish 
postoffices,  which  was  alone  possessed  by  the  former  govern- 
ment," the  argument  on  this  point  is  successfully  maintained. 

Clay  contended  that  "it  was  certainly  no  objection  to  the 
power  that  these  roads  might  also  be  used  for  other  pur- 
poses. It  was  rather  a  recommendation  that  other  objects, 
beneficial  to  the  people,  might  be  thus  obtained,  though  not 
within  the  words  of  the  Constitution."  For  an  illustration 
he  pointed  to  the  encouragement  of  manufactures  under  the 
power  to  levy  taxes.  Postroads  could  be  devoted  to  "  other 
purposes  connected  with  the  good  of  society."40  Construc- 
tion completed,  Clay  argued,  Congress  had  a  jurisdiction 
"concurrent  with  the  states,  over  the  road,  for  the  purpose 
of  preserving  it,  but  for  no  other  purpose.  In  regard  to  all 
matters  occurring  on  the  road,  whether  of  crime,  or  contract, 
etc.,  or  any  object  of  jurisdiction  unconnected  with  the 
preservation  of  the  road,  there  remained  to  the  states  ex- 
clusive jurisdiction."41 

At  the  conclusion  of  the  debate  several  resolutions  were 
offered  and  voted  upon,  only  one  receiving  a  majority.  It 
recited  "  that  Congress  have  power,  under  the  Constitution, 
to  appropriate  money  for  the  construction  of  postroads, 
military  and  other  roads,  and  of  canals  and  for  the  improve- 


40  Annals  of  I5th  Cong.,  ist  Sess.,  vol.  i,  p.  1173.    On  April  27, 
1816,  Congress  appropriated  money  "  for  the  purpose  of  repairing 
and  keeping  in  repair  "  certain  roads  under  the  direction  of  the  Sec- 
retary of  War.    3  Stat.  L.  315.     On  May  20,  1826,  provision  was 
made  for  the  repair  of  a  postroad  under  the  direction  of  the  post- 
master general.    4  Stat.  L.  190,  154.     No  mention  was  made  of  the 
consent  of  the  states. 

41  Annals  of  I5th  Congress,  ist  Sess.,  vol.  i,  p.  1169. 


POWER   OF   CONGRESS   TO   ESTABLISH    POSTROADS  73 

ment  of  water  courses."  In  this  matter  Congress  sanc- 
tioned the  distinction  between  appropriation  and  construc- 
tion. Three  other  resolutions  were  to  the  effect  that  Con- 
gress could  build,  generally,  post  and  military  roads ;  roads 
and  canals  necessary  "  for  commerce  between  the  states," 
and  canals  for  "  military  purposes."  These  avowals  of 
power,  although  they  stated  slightly  different  propositions, 
all  intimated  that  the  consent  of  the  states  would  not  be 
required,  since  each  contained  a  proviso  that  private  property 
should  not  be  taken  for  public  use  without  compensation, — 
a  liberal  attitude  for  this  period  of  constitutional  interpreta- 
tion.42 All  of  the  resolutions,  save  the  first,  failed  of 
passage  by  small  majorities. 

The  consideration  of  Monroe's  message  in  the  Senate  was 
very  favorable  to  the  President ;  there  was  little  disposition 
to  criticize  him  for  having  announced  his  views  prematurely, 
— possibly  with  the  intention  of  warning  Congress, — and  no 
attempt  was  made  to  ascertain  directly  the  Senate's  opinion 
on  the  constitutional  powers  of  Congress.  Indirectly,  how- 
ever, the  Senate  asserted  its  opinion  through  passing  on  a 
proposed  amendment  to  the  Constitution  which  was  urged 
in  response  to  Monroe's  intimation  that  this  was  the  proper 
method  of  dealing  with  the  matter. 

From  time  to  time  several  proposed  amendments  to  the 
Constitution  had  been  introduced,  and  these,  unlike  others 
advocated  during  "the  same  period  of  conflict  between 
the  broad  and  strict  obstructionists,"43  aimed  to  increase  the 
powers  of  Congress,  and  to  take  away  the  taint  of  usurpa- 
tion which,  at  least  in  the  minds  of  many,  was  considered  as 
attaching  to  the  road  projects  either  under  way  or  seriously 
contemplated.  Amendments  empowering  Congress  to  con- 
struct roads  and  canals  with  the  consent  of  the  states  were 
suggested  in  1813  and  1814,  and  on  December  9,  1817,  fol- 

42  Annals  of  I5th  Cong.,  ist  Sess.,  vol.  ii,  p.  1380  ff. 

43Ames,  The  Proposed  Amendments  to  the  Constitution  of  the 
United  States  during  the  First  Century  of  its  History,  p.  20.  (Re- 
port of  the  American  Historical  Association,  1896.) 


74  THE   POSTAL   POWER   OF   CONGRESS 

lowing  the  advice  of  Monroe's  message,  Senator  Barbour 
introduced  in  the  Senate  such  a  resolution  which  made  state 
consent  necessary  and  provided  that  the  appropriations 
should  be  distributed  "in  the  ratio  of  representation  which 
each  state  shall  have  in  the  most  numerous  branch  of  the 
national  legislature.  But  the  portion  of  any  state  may  be 
applied  to  the  purpose  aforesaid  in  any  other  state."  When 
the  resolution  was  reported,  it  was  indefinitely  postponed  by 
a  vote  of  22  to  Q.44  This  result  showed  that  there  was 
slight  chance  of  passing  any  general  road  construction  bill 
over  the  president's  veto,  although  some  of  the  votes  against 
the  resolution  were  cast  on  the  ground  that  Congress  already 
had  the  power. 

But  the  advocates  of  road  construction  were  not  to  be 
denied.  In  compliance  with  a  resolution,  Calhoun,  as  secre- 
tary of  war,  submitted  to  the  House  of  Representatives  on 
January  14,  1819,  a  comprehensive  report  on  roads  and 
canals,  the  necessity  for  them,  and  a  scheme  for  construction. 
Calhoun,  however,  "thought  it  improper  under  the  resolu- 
tion of  the  House  to  discuss  the  constitutional  question."45 

The  report  was  laid  on  the  table46  and  although  in  Jan- 
uary, 1822,  the  House  Committee  favored  surveys  for  canals 
from  Boston  south  along  the  Atlantic  coast,  and  in  the 
middle  west,  and  a  road  from  Washington  to  New  Orleans, 
nothing  became  law  with  the  exception  of  small  appropria- 
tions for  the  Cumberland  Road.47  It  was,  however,  an  act 
for  the  preservation  and  repair  of  this  road,  passed  by  the 
House  on  April  29,  1822,  and  returned  by  the  President  on 
May  4,  which  caused  him  to  follow  his  veto  message  with 
a  comprehensive  statement  of  the  "  Views  of  the  President 
of  the  United  States  on  the  subject  of  internal  improve- 

44  Annals  of  isth  Congress,  1st  Sess.,  vol.  i,  pp.  211,  292;  Ames, 
p.  260.    Martin  Van  Buren  while  in  the  Senate  urged  a  similar 
amendment  (1824-1825)   and  there  were  others  who  proposed  like 
resolutions.    Ames,  p.  261. 

45  See  above,  p.  67. 

46  Annals  of  isth  Congress,  2d  Sess.,  pp.  544,  2443. 

47  3  Stat.  L.  412,  426,  500,  560,  604,  728. 


POWER   OF   CONGRESS   TO   ESTABLISH    POSTROADS  75 

ments,"48  the  most  elaborate  constitutional  discussion  ever 
sent  to  the  Capitol  from  the  White  House. 

Monroe  was  of  the  opinion  that  Congress  had  the  right 
to  make  appropriations  for  roads,  with  the  consent  of  the 
states  through  which  they  were  to  pass,  but  that  it  did  not 
have  sovereign  and  jurisdictional  rights  to  construct  roads 
or  to  repair  and  keep  them  free  from  obstructions.  This 
doctrine  Von  Hoist  calls  a  "  quibble  on  words,"  but  "  it  has 
become  an  established  one  that  Congress  may  appropriate 
money  in  aid  of  matters  which  the  federal  government  is  not 
constitutionally  able  to  administer  and  regulate,"  and  in  this 
respect,  therefore,  Monroe  was  correct.49 

The  advocates  of  construction  and  of  efficient  jurisdiction 
after  the  roads  had  been  made,  derived  the  authority  of 
Congress  from  several  clauses  in  the  Constitution,  among 
them  the  grant  "  to  establish  postoffices  and  postroads."  To 
this  clause,  Monroe  gave  an  exhaustive  treatment. 

"  What  is  the  just  import  of  these  words,  and  the  extent 
of  the  grant?"  he  asked.  "The  word  ' establish '  is  the 
ruling  term;  'postoffices  and  postroads'  are  the  subjects,  on 
which  it  acts.  The  question,  therefore,  is,  what  power  is 
granted  by  that  word  ?  The  sense,  in  which  our  words  are 
commonly  used,  is  that,  in  which  they  are  to  be  understood 
in  all  transactions  between  public  bodies  and  individuals. 

48  Richardson,  vol.  ii,  p.  142.    Monroe's  veto  was  not  unexpected. 
He  had  sounded  a  warning  in  his  annual  message  of  1822  when  he 
said  that  a  power  to  execute  a  system  of  internal  improvements, 
"  confined  to  great  national  purposes  and  with  proper  limitations, 
would  be  productive  of  eminent  advantage  to  our  Union,"  and  thus 
"  thought  it  advisable  that  an  amendment  of  the  Constitution  to  that 
effect  should  be  recommended  to  the  several   states."     Ibid.,   vol. 
ii,  p.  191. 

49  i  Willoughby  on  the  Constitution,  588.     As  late  as  1827  Madison 
wrote  to  Monroe  concerning  the  Cumberland  Road :  "  I  cannot  as- 
sign the  grounds  assumed  for  it  by  Congress,  or  which  produced  his 
[Jefferson's]   sanction.     I  suspect  that  the  question  of  constitution- 
ality was  but  slightly,  if  at  all,  examined  by  the  former,  and  that  the 
executive  consent  was  doubtingly  and  hesitatingly  given.    Having 
once  become  a  law  and  being  a  measure  of  singular  utility,  addi- 
tional appropriations  took  place  of  course  under  the  same  admin- 
istration, and  with  the  accumulated  impulse  thus  derived,  were  con- 
tinued under  the   succeeding  one,   with   less   critical  investigation, 
perhaps,  than  was  due  to  the  case."    Madison,  Works,  vol.  iii,  p.  55. 


76  THE   POSTAL   POWER   OF   CONGRESS 

The  intention  of  the  parties  is  to  prevail,  and  there  is  no 
better  way  of  ascertaining  it,  than  by  giving  to  the  terms 
used  their  ordinary  import." 

Among  enlightened  citizens,  Monroe  went  on,  there  would 
be  no  difference  of  opinion;  "all  of  them  would  answer, 
that  a  power  was  thereby  given  to  Congress  to  fix  on  the 
towns,  court-houses,  and  other  places,  throughout  our 
Union,  at  which  there  should  be  postoffices ;  the  routes  by 
which  the  mails  should  be  carried  from  one  postoffice  to 
another,  so  as  to  diffuse  intelligence  as  extensively,  and  to 
make  the  institution  as  useful,  as  possible ;  to  fix  the  postage 
to  be  paid  on  every  letter  and  packet  thus  carried  to  support 
the  establishment;  and  to  protect  the  postoffices  and  mails 
from  robbery,  by  punishing  those,  who  should  commit  the 
offence.  The  idea  of  a  right  to  lay  off  the  roads  of  the 
United  States,  on  a  general  scale  of  improvement;  to  take 
the  soil  from  the  proprietor  by  force ;  to  establish  turnpikes 
and  tolls,  and  to  punish  offenders  in  the  manner  stated 
above,  would  never  occur  to  any  such  person.  The  use  of 
the  existing  road,  by  the  stage,  mail  carrier,  or  postboy,  in 
passing  over  it,  as  others  do,  is  all  that  would  be  thought  of ; 
the  jurisdiction  and  soil  remaining  to  the  state,  with  a  right 
in  the  state,  or  those  authorized  by  its  legislature,  to  change 
the  road  at  pleasure." 

This  interpretation,  the  message  went  on  to  declare,  was 
supported  by  the  modification  of  the  postal  grant  in  the 
Articles  of  Confederation,  as  it  appeared  in  the  Constitution. 
"  Had  it  been  intended  to  convey  a  more  enlarged  power  in 
the  Constitution,"  said  Monroe,  "than  had  been  granted  in 
the  Confederation,  surely  the  same  controlling  term  [estab- 
lish] would  not  have  been  used ;  or  other  words  would  have 
been  added,  to  show  such  intention,  and  to  mark  the  extent, 
to  which  the  power  should  be  carried.  ...  It  would  be 
absurd  to  say,  that,  by  omitting  from  the  Constitution  any 
portion  of  the  phraseology,  which  was  deemed  important  in 
the  Confederation,  the  import  of  that  term  was  enlarged, 
and  with  it  the  powers  of  the  Constitution,  in  a  proportional 


POWER   OF   CONGRESS   TO   ESTABLISH    POSTROADS  // 

degree,  beyond  what  they  were  in  the  Confederation.  The 
right  to  exact  postage  and  to  protect  the  postoffices  and 
mails  from  robbery,  by  punishing  the  offenders,  may  fairly 
be  considered,  as  incidents  to  the  grant,  since,  without  it,  the 
object  of  the  grant  might  be  defeated.  Whatever  is  abso- 
lutely necessary  to  the  accomplishment  of  the  object  of  the 
grant,  though  not  specified,  may  fairly  be  considered  as  in- 
cluded in  it.  Beyond  this  the  doctrine  of  incidental  power 
cannot  be  carried."  Monroe  then  enters  upon  a  considera- 
tion of  what  the  colonists  and  framers  of  the  Constitution 
understood  to  be  comprehended  in  the  postal  power,  and 
concludes : 

"If  the  United  States  possessed  the  power  contended  for 
under  this  grant,  might  they  not,  in  adopting  the  roads  of 
the  individual  states  for  the  carriage  of  the  mail,  as  has  been 
done,  assume  jurisdiction  over  them,  and  preclude  a  right  to 
interfere  with  or  alter  them?  Might  they  not  establish 
turnpikes,  and  exercise  all  the  other  acts  of  sovereignty, 
above  stated,  over  such  roads,  necessary  to  protect  them 
from  injury,  and  defray  the  expense  of  repairing  them? 
Surely,  if  the  right  exists,  these  consequences  necessarily 
followed,  as  soon  as  the  road  was  established.  The  ab- 
surdity of  such  a  pretension  must  be  apparent  to  all,  who 
examine  it.  In  this  way,  a  large  portion  of  the  territory  of 
every  state  might  be  taken  from  it;  for  there  is  scarcely  a 
road  in  any  state,  which  will  not  be  used  for  the  transporta- 
tion of  the  mail.  A  new  field  for  legislation  and  internal 
government  would  thus  be  opened."50 

50  The  validity  of  Monroe's  argument  is  treated  below,  p.  81. 
Perhaps  it  may  not  be  amiss  to  add  that  I  have  not  attempted  an 
exhaustive  consideration  of  congressional  activity  in  respect  to  road 
construction.  This  has  been  done  by  Nelson,  Presidential  Influence 
on  the  Policy  of  Internal  Improvements,  and  Young,  A  Political 
and  Constitutional  Study  of  the  Cumberland  Road.  There  are  also 
excellent  and  less  specialized  accounts  in  Babcock,  The  Rise  of 
American  Nationality,  ch.  xv,  Turner,  The  Rise  of  the  New  West, 
ch.  xiii  (American  Nation,  vpls.  13  and  14),  and  Schouler,  History 
of  the  United  States,  vol.  iii.  My  sole  purpose  has  been  to  treat 
congressional  action  and  presidential  opinion  from  their  constitu- 
tional aspects  in  relation  to  the  power  to  establish  postoffices  and 
postroads. 


78  THE   POSTAL   POWER   OF   CONGRESS 

While  the  President's  attitude  stopped  Congress  from 
actually  constructing  roads,  frequent  appropriations  were 
granted  to  be  applied  under  the  direction  of  the  states. 
Perhaps  the  most  important  of  these  was  in  the  act  passed 
in  1824  to  have  surveys  made  of  such  roads  and  canals  as 
in  the  opinion  of  the  President  were  of  value  for  military, 
commercial  and  postal  purposes.51 

Conflict  over  the  constitutional  problem,  and  the  distinc- 
tion between  appropriation  and  construction,  were,  however, 
abandoned  by  John  Quincy  Adams  who  was  a  stanch  advo- 
cate of  federal  aid,52  but  the  discussion  was  revived  by 
Jackson,  who  vetoed  six  bills,53  the  most  important  of  which 
provided  for  a  government  subscription  of  $150,000  to  pur- 
chase stock  in  the  Maysville,  Washington,  Paris  and  Lexing- 
ton Turnpike  Company,  a  Kentucky  corporation.  The  ac- 
tion of  the  President  did  not  come  as  a  surprise  for  in  his 
first  annual  message  he  had  told  Congress  that  the  mode  of 
internal  improvements,  "  hitherto  adopted,  has  by  many  of 
our  fellow  citizens  been  deprecated  as  an  infraction  of  the 
constitution,  while  by  others  it  has  been  viewed  as  inex- 
pedient. All  feel  that  it  has  been  employed  at  the  expense 
of  harmony  in  the  legislative  councils."54 

Furthermore,  Jackson  thoroughly  disapproved  of  the  gov- 
ernment's becoming  a  minority  stockholder  in  a  semi-private 
enterprise  which  would  receive  profits  through  the  payment 
of  tolls.  He  held  it  to  be  not  only  "highly  expedient,  but 
indispensably  necessary,  that  a  previous  amendment  of  the 
Constitution,  delegating  the  necessary  power  and  defining 
and  restricting  its  exercise  with  reference  to  the  sovereignty 
of  the  states,  should  be  made."55  Otherwise  there  would  be 
a  continuance  of  congressional  uncertainty  as  to  the  exist- 
ence of  the  power.  He  considered  the  general  question  in 

51 4  Stat.  L.  71 ;  for  the  list  of  appropriations,  see  Nelson,  p.  57 ; 
see  also  Lalor,  Cyclopaedia  of  Political  Science  (Internal  Improve- 
ments), vol.  ii,  p.  568. 

2  Richardson,  vol.  ii,  p.  281. 

53  Mason,  The  Veto  Power,  pp.  143,  145. 

54  Richardson,  vol.  ii,  p.  452. 

55  Ibid.,  vol.  ii,  p.  492. 


POWER   OF   CONGRESS   TO   ESTABLISH    POSTROADS  79 

two  aspects :  ( I )  as  "to  the  power  of  making  internal  im- 
provements within  the  limits  of  a  state,  with  the  right  of 
territorial  jurisdiction,  sufficient  at  least  for  their  preserva- 
tion and  use"  and  (2)  as  to  the  power  of  "appropriating 
money  in  aid  of  such  works  when  carried  on  by  a  state  or 
by  a  company  in  virtue  of  state  authority,  surrendering  the 
claim  of  jurisdiction."56  He  believed  Congress  could  ap- 
propriate directly  for  national,  not  local,  purposes  ;  the  other 
power  he  firmly  denied. 

After  Jackson  there  were  other  vetoes  of  internal  im- 
provement bills,  but  they  were  based  largely  upon  the  dis- 
tinction between  national  and  local  objects.  Road  con- 
struction, moreover,  gave  way  to  river  and  harbor  develop- 
ment, and  there  was  little,  if  any,  discussion  of  the  meaning 
of  the  postal  clause.  Congress  asserted  a  broad  power  over 
postroads  designated  by  it,  and  there  was  little  objection; 
on  the  few  occasions  that  the  matter  came  before  the  courts, 
the  power  was  sustained.  In  1862  Congress  gave  the  Presi- 
dent authority  when  in  his  judgment  the  public  safety  re- 
quired its  exercise,  to  take  possession  of  all  railroads  and 
telegraphs  and  to  place  their  employees  under  military  con- 
trol, so  that  the  lines  would  be  "considered  as  a  postroad 
and  a  part  of  the  military  establishment  ©f  the  United 
States,  subject  to  all  the  rules  and  restrictions  imposed  by 
the  rules  and  articles  of  war."57  Any  interference  with 
the  exercise  of  this  authority  was  made  a  crime.  Com- 
pensation to  the  railroad  and  telegraph  companies  was  to  be 
fixed  by  three  commissioners,  subject  to  approval  by  Con- 
gress. This  authorization,  however,  was  based  upon  the 
war,  as  well  as  on  the  postal  power,  and  when  Congress 
came  to  charter  railroads  and  bridge  companies,  it  based  its 
right  largely  on  the  commerce  clause,  with  the  postal  and 
war  grants  as  ancillary  sources.58 

Recent  evidences  of  congressional  action,  based  upon  the 

56  Richardson,  vol.  iii,  p.  119;  Bassett,  Life  of  Andrew  Jackson, 
vol.  ii,  pp.  483-495. 

57  12  Stat  L.  334. 

58  See  also  Act  of  July  i,  1862;  12  Stat.  L.  489. 


8O  THE   POSTAL   POWER   OF   CONGRESS 

postroads  clause,  are  to  be  seen  in  the  good  roads  move- 
ment, and  in  1912  Congress  appropriated  five  hundred  thou- 
sand dollars  for  "improving  the  condition  of  roads  to  be 
selected  by  them  [the  secretary  of  agriculture  and  the  post- 
master general]  over  which  rural  delivery  is  or  may  here- 
after be  established,  such  improvement  to  be  for  the  purpose 
of  ascertaining  the  increase  in  the  territory  which  could  be 
served  by  each  carrier  as  a  result  of  such  improvement,  the 
possible  increase  of  the  number  of  delivery  days  in  each 
year,"  etc.  But  it  is  provided  that  the  state  in  which  the 
improvements  are  to  be  made  "shall  furnish  double  the 
amount  of  money  for  the  improvement  of  the  road  or  roads 
so  selected."59  The  results  of  the  scheme  have -not  been 
very  satisfactory,60  but  proposals  are  made  for  other,  and 
more  extensive  federal  undertakings.  Finally  it  is  possible, 
in  some  measure  at  least,  to  base  upon  the  postal  power  the 
Act  of  March  12,  1914,  which  authorizes  "  the  president  of 
the  United  States  to  locate,  construct  and  operate  railroads 
in  the  Territory  of  Alaska."61 

Judicial  Determinations. — The  power  of  Congress  to  con- 
struct roads  and  canals  did  not,  in  the  early  days  of  its 
assertion  and  denial,  come  before  the  Supreme  Court  of  the 
United  States ;  in  fact,  the  question  has  never  been  directly 
passed  upon  by  the  Court,  and  long  before  it  was  incidentally 
considered,  largely  in  the  cases  upholding  the  right  of  emi- 
nent domain  and  its  delegation  to  railroad  corporations  with 
federal  charters,  the  constitutional  problem,  as  Madison  said 
in  rejecting  the  bank  bill  of  1814,  was  "precluded  by  re- 
peated recognitions,  under  varied  circumstances,  of  the 
validity  of  the  exercise  of  a  power  to  establish  a  bank  by 
Congress,  in  acts  of  the  legislative,  executive,  and  judicial 
branches  of  the  government,  accompanied  by  indications  in 

59  37  Stat.  L.  552. 

60  Sloane,   Party  Government  in  the  United  States  of  America, 
p.  316. 

61  Public,  No.  69,  63d  Congress ;  Act  of  March  12,  1914.     See  also 
63d  Cong.,  i  Sess.,  S.  Rept.  No.  65;  63d  Cong.,  2d  Sess.,  H.  Rept 
No.  341,  and  Weems,  "  Government  Railroads  in  Alaska,"  North 
American  Review,  April,  1914. 


POWER   OF   CONGRESS   TO   ESTABLISH    POSTROADS  8 1 

different  modes  of  a  concurrence  of  the  general  will  of  the 
nation."62  Such  a  test,  however,  is  by  no  means  adequate. 

For  a  time  the  question  of  congressional  power  was  acute, 
and  its  existence  was  not  acknowledged,  even  by  some  who 
cannot  be  called  strict  constructionists.  The  opinions  held 
by  Congress  and  the  executive  have  already  been  reviewed ; 
but  Monroe's  elaborate  veto  message  on  the  "  gate  bill "  gave 
the  Supreme  Court  justices  an  opportunity  to  express  their 
views  informally,  for  he  sent  a  copy  of  his  paper  to  each 
member  of  the  Court.  In  his  reply  Justice  Johnson  inti- 
mated that  the  doctrine  of  McCulloch  v.  Maryland63  com- 
mitted the  Court  to  upholding  a  power  in  Congress  to  con- 
struct roads  for  military  and  postal  purposes ;  Marshall  con- 
sidered the  question  one  "  on  which  many  divide  in  opinion, 
but  all  will  admit  that  your  views  are  profound  and  that 
you  have  thought  much  on  the  subject."  Story  was  non- 
committal, and  thus  one  of  the  few  attempts  to  get  an  in- 
formal expression  of  opinion  from  the  Supreme  Court  was 
a  failure.64 

It  is  difficult  to  see  how,  logically,  there  can  be  any  doubt 
as  to  a  very  wide  authority  in  Congress.  A  fair  interpreta- 
tion of  the  word  "  establish  "  comprehends  "  construction  " 
or  at  least  something  more  than  "  designation  " ;  otherwise 
it  would  have  been  futile  for  the  Articles  of  Confederation 
and  the  Constitution  to  give  Congress  powers  under  which 
it  has  undertaken  to  "establish"  navy  hospitals,  trading 
houses  with  the  Indians,  inferior  courts,  rules  of  capture, 
and  regulations  of  trade.  The  second  portion  of  the  postal 
clause  did  not  appear  in  the  Articles  of  Confederation,  and 
the  grant  in  the  Constitution  was  absolute,  with  no  limita- 

62  Richardson,  vol.  ii,  p.  555. 

63  4  Wheat  316  (1819). 

64  In  his  Commentaries,  Story  devotes  twenty  pages  to  an  exposi- 
tion of  both  sides  of  the  controversy  and  concludes:  "The  reader 
must  decide  for  himself,  upon  the  preponderance  of  the  argument." 
Vol.  iii,  p.  46.     The  incident  of  submitting  the  message  to  the  Su- 
preme Court  is  given  in  detail  by  Schouler,  History  of  the  United 
States,  vol.  iii,  p.  254  ff.     As  to  advisory  opinions,  see  I  Willoughby 
on  the  Constitution,  13,  and  Thayer,  Cases  on  Constitutional  Law, 
vol.  i,  p.  175. 


82  THE   POSTAL   POWER   OF   CONGRESS 

tions  as  to  state  action.  A  restricted  interpretation,  applied 
to  the  first  part  of  the  clause,  as  demanded  by  consistency, 
would  give  Congress  authority  to  provide  postoffices,  but 
without  mails,  carriers,  routes,  secure  transmission,  or 
revenue.  That  Congress  in  fact  had  the  power  to  construct 
roads  has  been  made  evident,  I  think,  by  the  debates  on  the 
various  measures  that  were  proposed. 

But  as  has  been  seen  in  the  legislation  concerning  the 
Cumberland  Road,  the  consent  of  the  states  was  required 
before  construction  could  be  started,  and  limitations  were 
imposed  on  the  federal  power.  So  also,  it  was  at  first  main- 
tained that  Congress  did  not  have  the  right  to  keep  the  roads 
open,  in  repair,  and  to  impose  tolls  for  their  use,  whether 
they  had  been  constructed  under  national  authority  or  had 
simply  been  designated  as  mail  routes.  For  example,  the 
Act  of  March  26,  1804,  provided  "  that  whenever  it  shall 
be  made  to  appear  to  the  satisfaction  of  the  postmaster 
general  that  any  road  established  by  this  or  any  former  act, 
as  a  postroad,  is  obstructed  by  fences,  gates  or  bars,  other 
than  those  lawfully  used  on  turnpike  roads,  to  collect  their 
toll,  and  not  kept  in  good  repair  with  proper  bridges  and 
ferries,  where  the  same  may  be  necessary  it  shall  be  the 
duty  of  the  postmaster  general  to  report  the  same  to  Con- 
gress, with  such  information  as  can  be  obtained,  to  enable 
Congress  to  establish  some  other  road,  instead  of  it,  in  the 
same  main  direction."65 

In  1812  Gallatin  made  a  report  to  the  President  on  the 
Cumberland  Road  and  referred  to  the  necessity  of  levying 


65  2  Stat.  L.  275,  277.  In  1810  the  postmaster  general  was  given 
authority  to  "provide  for  the  carriage  of  the  mail  on  all  postroads 
that  are  or  may  be  established  by  law,"  and  to  "  direct  the  route  or 
road,  when  there  are  more  than  one  between  places  designated  by 
law  for  a  postroad,  which  route  shall  be  considered  as  the  post- 
road";  and  the  lines  designated  in  contracts  for  carrying  the  mail 
were  to  be  considered  postroads  within  the  provisions  of  the  act. 
2  Stat.  L.  592.  But  in  1825  while  the  authority  of  the  postmaster 
general  to  designate  different  routes  was  continued,  there  was  a 
further  provision  that  in  cases  not  covered  by  contracts,  "  the  road, 
on  which  such  mail  shall  be  transported,  shall  become  a  postroad 
and  so  continue  until  the  transportation  thereon  shall  cease."  4 
Stat.  L.  102. 


POWER   OF   CONGRESS   TO   ESTABLISH    POSTROADS  83 

tolls  sufficient  to  keep  certain  portions  in  repair ;  but  this,  he 
said,  could  be  done  "only  under  the  authority  of  the  state 
of  Maryland."66  The  next  year  the  superintendent  of  the 
road  reported  to  Gallatin  that  he  expected  the  Maryland 
legislature  to  pass  a  law,  "  authorizing  the  President  to 
receive  toll,  for  the  purpose  of  repairing  the  road,  and  like- 
wise against  abuses  which  are  common  on  all  roads  of  the 
kind  to  prevent  which  laws  have  been  found  necessary."67 
Secretary  Dallas  was  of  the  same  opinion,  and  in  1815  told 
the  House  Committee  on  the  Cumberland  Road  that  Con- 
gress had  no  authority  to  make  provision  for  tolls  and  the 
prevention  of  abuses.  "They  can  only  proceed,"  he  said, 
"  from  the  legislatures  of  the  states  through  which  the  road 
passes,  and  consist  of  an  authority  for  the  erection  of  toll 
gates,  and  the  collection  of  a  toll  sufficient  to  defray  the 
expenses  of  repair,  and  the  infliction  of  penalties  upon 
persons  who  shall  cut,  break  up,  or  otherwise  destroy  or 
injure  the  road."68 

The  House  Committee,  however,  held  that  since  a  com- 
pact had  been  entered  into  between  the  federal  government 
and  the  states,  Congress  had  the  right  to  legislate  in  order 
to  carry  out  its  undertaking  to  open  and  maintain  the  road. 
"  If  the  right  to  punish  these  offences  belongs  to  the  national 
government,"  said  the  committee,  "  it  may  be  effected  with- 
out the  passage  of  any  law,  by  an  indictment  or  information 
in  the  courts  of  the  United  States,  or  by  enacting  statutory 
provisions  fixing  the  penalties,  it  being  a  fundamental  right 
of  the  judiciary  inherent  in  every  government  to  punish  all 
offences  against  the  laws  passed  in  pursuance  of  a  delegated 
power  independently  of  express  legislative  sanctions."69 

After  President  Monroe's  veto,  the  Cumberland  Road  be- 
came sadly  in  need  of  repairs,  and  again  Congress  considered 
the  question  of  jurisdiction, — whether  the  right  to  preserve 

66  Miscellaneous   State  Papers,  vol.   ii,   p.    175. 
87  Ibid.,  p.  205. 

68  Ibid.,  p.  272. 

69  Ibid.,  p.  301.     See  U.  S.  v.  Hudson  &  Goodwin,  7  Cranch  32 
(1812). 


84  THE   POSTAL   POWER   OF   CONGRESS 

was  incidental  to  the  right  to  establish.  The  states  passed 
laws  to  protect  the  road  against  injuries  and  appropriated 
money  for  improvements,  but  the  sums  provided  were  in- 
adequate70 and  soon  a  disposition  was  shown  to  consent  to 
the  assumption  by  Congress  of  complete  control  over  the 
Road.  The  Pennsylvania  legislature  passed  a  resolution 
(1828)  giving  the  federal  government  permission  to  collect 
tolls  within  the  commonwealth,  with  the  reservation  that  the 
whole  amount  collected  should  be  devoted  to  repairs.71 

Monroe  had  desired  cooperation  between  the  national  and 
local  authorities.  In  his  message  of  December  2,  1823,  he 
urged  "an  arrangement  with  the  several  states  through 
which  the  Road  passes,  to  establish  tolls,  each  within  its 
limits,  for  the  purpose  of  defraying  the  expense  of  future 
repairs  and  providing  also  by  suitable  penalties  for  its  pro- 
tection against  future  injuries."72  This  portion  of  the 
message  was  considered  by  the  House  Committee  on  Roads 
and  Canals,  whose  opinion  it  was  that  Congress  had  itself 
the  right  to  charge  tolls  and  punish  offences ;  the  committee 
could  not  approve  of  an  arrangement  by  which  the  states 
might  charge  tolls:  uniformity  and  one  jurisdiction  were 
eminently  desirable.73  Yet  in  1828-1829  when  the  whole 
question  of  control  was  again  threshed  out  in  Congress,  any 
federal  right,  either  absolutely  or  by  virtue  of  state  per- 
mission, to  charge  tolls,  was  still  denied.  Congress  simply 
appropriated  $100,000  for  the  repair  of  the  road;  Monroe's 
distinction  between  appropriation  and  control  was  adhered 
to.74 

The  states,  moreover,  still  asserted  plenary  authority.  In 
1833  the  Maryland  legislature  gave  the  President  authority 
to  make  a  change  in  the  Cumberland  Road75  and  in  1834 
Illinois  consented  to  the  extension  of  the  national  road 
"through  the  territory  of  said  state  so  as  to  cross  the 

70  Young,  The  Cumberland  Road,  p.  79- 

71  Laws  of  Pennsylvania,  1827-28,  p.  500. 

72  Richardson,  vol.  ii,  p.  217. 

73  i8th  Cong.,  ist  Sess.,  House  Rept  No.  118. 

74  Act  of  March  3,  1829;  4  Stat.  L.  363. 

75  Laws  of  Maryland,  1831-1832,  ch.  55. 


POWER   OF   CONGRESS   TO   ESTABLISH    POSTROADS  85 

Mississippi  River  at  the  town  of  Alton  and  no  other  point."76 
For  various  reasons  the  road  was  not  constructed,  but  Con- 
gress was  several  times  memorialized  to  take  the  desired 
action77  and  in  1844  the  Senate  Committee  on  Roads  and 
Canals,  having  under  consideration  a  bill  to  extend  the  high- 
way to  Alton,  made  a  favorable  recommendation  and  pointed 
out  the  fact  that  the  consent  of  the  states  affected  was  a 
necessary  preliminary  before  actual  construction  could 
begin. 

"  The  right  of  the  state  of  Illinois  to  give  or  withhold  her 
assent  to  the  construction  of  the  road  within  her  limits," 
said  the  committee's  report,  "  cannot  be  questioned  in  view 
of  the  course  pursued  by  the  general  government  to  obtain 
the  consent  of  other  states."78  Reports  to  identical  effect 
were  made  during  the  second  session  of  the  28th  Congress 
(January  15,  1845)  and  the  second  session  of  the  2Qth  Con- 
gress (January  16,  i847),79  tne  second  report  being  accom- 
panied by  a  strong  letter  from  Senator  Semple  of  Illinois, 
who  pointed  out  that  his  state  would  never  consent  to  any 
route  other  than  the  one  which  had  been  recommended  in 

1834- 

Meanwhile  definitive  action  had  been  taken  during  Jack- 
son's administration,  as  a  result  of  his  determined  opposi- 
tion to  internal  improvements  and  denial  of  federal  authority 
to  construct  roads.  "  Annual  appropriations  for  the  repair 
of  the  road  were  being  made,  but  this  method  could  not  con- 
tinue indefinitely,  inasmuch  as  tolls  could  not  be  levied  by 
the  United  States  for  repairs.  Because  of  the  lack  of 
jurisdiction,  a  resort  to  state  control,  with  the  consent  of 
Congress  became  an  absolute  necessity."80  Acts  of  the 
Pennsylvania,  Maryland,  Ohio  and  Virginia  legislatures 
were,  therefore,  passed,  and  congressional  assent  was  given 
to  the  erection  of  toll  gates  and  repairs  by  the  states,  with  the 

76  13  Congressional  Debates,  1132. 

77  24th  Cong.,  ist  Sess.,  Sen.  Doc.  No.  196. 

78  28th  Cong.,  ist  Sess.,  Sen.  Doc.  No.  324,  p.  7. 

79  28th  Cong.,  2d  Sess.,  Sen.  Doc.  No.  41,  and  2pth  Cong.,  2d  Sess., 
Sen.  Doc.  No.  70. 

80  Young,  The  Cumberland  Road,  p.  87. 


86  THE   POSTAL   POWER   OF   CONGRESS 

provision  in  the  compact  that  no  charge  should  be  made  for 
the  passage  of  United  States  mails,  troops  or  property.  In 
1879  the  control  of  the  states  was  made  complete  and 
unreserved.  Yet  the  original  acts  of  surrender  recognized 
"  either  a  proprietary  or  jurisdictional  interest,  or  both,  in 
the  United  States,  as  follows :  ( i )  something  was  sur- 
rendered ;  (2)  surrender  was  made  by  '  compacts '  which 
regulated  the  number  of  toll  gates  and  the  rates  of  toll;  (3) 
provision  was  made  for  the  United  States  to  resume  its  pro- 
prietary or  jurisdictional  interest  at  pleasure."81 

But  before  the  legal  questions  arising  out  of  this  sur- 
render were  passed  upon  by  the  Supreme  Court  of  the 
United  States,  the  whole  problem  of  congressional  power 
and  the  rights  of  the  states  was  carefully  considered  by  the 
Kentucky  Court  of  Appeals,  whose  opinion,82  treating  points 
primae  impressionis,  is  remarkably  well  considered.  The 
particular  question  to  be  decided  was  whether  a  contractor 
for  carrying  the  mail  between  points  within  the  state  on  a 
turnpike  road  had  any  right  of  exemption  from  the  tolls, 
exacted  under  the  company's  charter  from  other  persons 
for  the  transit  of  their  horses  and  stages.  The  court  held 
that  the  tolls  should  be  paid. 

It  recognized  that  the  postal  power  "being  necessarily 
exclusive,  plenary  and  supreme,  no  state  can  constitutionally 
do,  or  authorize  to  be  done,  any  act  which  may  frustrate, 
counteract,  or  impair  the  proper  and  effectual  exercise  of  it 
by  national  authority.  From  these  axiomatic  truths  it  fol- 
lows as  a  plain  corollary  that  the  general  government  has  the 
right  to  transport  the  national  mail  whenever  and  wherever 
the  national  Congress,  in  the  constitutional  exercise  of  its 
delegated  power  over  postoffices  and  postroads  shall  have 
prescribed."  But,  said  the  court,  this  power  was  not  un- 
limited, and  could  not  appropriate  private  property  for  public 

81  Young,  p.  98,  and  passim  for  an  able  account  of  the  whole  con- 
troversy over  jurisdiction.     I  have  here  attempted  to  present  only 
the  points  necessary  for  an  understanding  of  the  constitutional  prob- 
lems that  the  courts  were  called  upon  to  consider. 

82  Dickey  v.  Maysville,  etc.,  Co.,  7  Dana  (37  Ky.)  113  (1838). 


POWER   OF   CONGRESS   TO   ESTABLISH    POSTROADS  8/ 

use  without  just  compensation.  If  the  turnpike  was  con- 
sidered as  private  property  in  view  of  the  company's  fran- 
chise, tolls  should  be  paid  by  the  mail  contractor ;  considering 
the  turnpike  as  a  public  state  road,  the  court  reached  the 
same  conclusion,  which,  it  pointed  out,  would  not  have  been 
modified  had  Congress  seen  fit  to  designate  this  particular 
road  as  a  mail  route.  Anyone  doubting  the  logic  of  this,  the 
court  said,  "  should  also  doubt  whether  his  own  house  might 
not  be  taken  and  «sed  as  a  postoffice  without  his  consent 
and  without  any  compensation." 

The  court  then  proceeded,  obiter,  to  explain  its  under- 
standing of  the  postroads  power.  According  to  reason  and 
philology,  the  import  of  "  establish  "  was  declared  to  be,  not 
merely  "  designate "  but  "  found,  prepare,  make,  institute 
and  confirm."  "So  too,"  the  court  held,  "as  roads  and 
good  roads  are  indispensable  to  the  effectual  establishment 
of  postroads,  the  supreme  power  to  '  establish  postroads ' 
necessarily  includes  the  power  to  make,  repair  and  preserve 
such  roads  as  may  be  suitable.  .  .  ."  Congress  therefore 
was  considered  to  have  the  power  to  open  roads  and  build 
bridges  when  necessary ;  there  was  no  question  of  constitu- 
tional right,  simply  of  expediency.83 

"  Unless  Congress  shall  elect  to  exercise  its  right  of  emi- 
nent domain,  and  buy  a  state  road,  or  make  one,  or  help  to 
make  or  repair  it,  the  constitution  gives  no  authority  to  use 
it  as  a  postroad  without  the  consent  of  the  state  or  the 
owner,  without  making  just  compensation  for  the  use." 
Here  was  acknowledgment  of  an  authority  more  far  reach- 
ing than  even  the  more  liberal  contemporary  opinion  gave  to 
Congress ;  the  court  recognized  a  right  of  eminent  domain 
to  take  over  a  road,  but  until  this  was  exercised,  the  mails 
were  subject  to  tolls. 

When,  seven  years  later,  the  Supreme  Court  of  the  United 
States  passed  upon  the  toll  question  which  arose  under  the 

83  "  Every  postroad  is  a  national  road,"  said  the  court.  "So  far  as 
it  is  a  postroad,  it  is  as  national  as  the  Chesapeake  Bay  or  the 
Mississippi  River." 


88  THE   POSTAL   POWER   OF   CONGRESS 

compact  ceding  the  Cumberland  Road  to  the  states,84  there 
was  the  same  opportunity  to  make  a  definite  pronounce- 
ment as  to  the  authority  of  Congress  to  engage  in  road 
construction ;  in  its  opinion,  however,  the  Court  made  no 
use  of  this  opportunity,  although  a  dissentient  justice  voiced 
his  views  that  the  power  of  Congress  was  not  so  great  as 
that  asserted  in  the  Dickey  case. 

The  act  of  the  Ohio  legislature  in  taking  over  the  Cum- 
berland Road  specifically  provided  that  tolls  should  not  be 
collected  for  the  passage  of  the  mails ;  but  the  Pennsylvania 
law  was  more  general,  declaring  that  "no  toll  shall  be  re- 
ceived or  collected  for  the  passage  of  any  wagon  or  carriage 
laden  with  the  property  of  the  United  States.  .  .  ."  The 
Maryland  act  was  precisely  the  same  as  this,  while  the  Vir- 
ginia statute  followed  the  Ohio  law.  In  1836,  however, 
Pennsylvania  declared  that  the  exemption  should  be  only 
in  proportion  to  the  amount  of  property  belonging  to  the 
United  States,  and  "  that  in  all  cases  of  wagons,  carriages, 
stages  or  other  modes  of  conveyance,  carrying  the  United 
States  mail,  with  passengers  or  goods,  such  wagon,  stage, 
or  other  mode  of  conveyance  shall  pay  half-toll  upon  such 
modes  of  conveyance." 

The  validity  of  this  legislation  was  the  question  presented 
to  the  Supreme  Court,  and  in  its  decision  the  Court  could 
well  have  entered  upon  a  discussion  of  the  power  of  Congress 
in  the  premises.  But  Chief  Justice  Taney,  who  delivered 
the  opinion,  was  at  pains  to  point  out,  "that  the  constitu- 
tional power  of  the  general  government  to  construct  this 
road  is  not  involved  in  the  case  before  us ;  nor  is  the  court 
called  upon  to  express  any  opinion  on  that  subject;  nor  to 
inquire  what  were  the  rights  of  the  United  States  in  the 
road  previous  to  the  compacts  hereinbefore  mentioned." 

Taney  simply  held,  therefore,  that  "the  United  States 
have  unquestionably  a  property  in  the  mails";  that  this 
property  was  exempted  from  the  payment  of  tolls  by  the 
terms  of  the  compact,  but  this  exemption  should  not  apply  to 


84Seabright  v.  Stokes,  3  Howard  151  (1845). 


POWER   OF   CONGRESS   TO   ESTABLISH    POSTROADS  89 

other  property  in  the  same  vehicle,  nor  to  any  person  unless 
in  the  service  of  the  United  States.  Finally,  in  answer  to 
the  objection  that  small  parcels  might  be  sent  by  a  num- 
ber of  conveyances  to  relieve  them  from  the  payment  of 
tolls,  Taney  held  that  "the  United  States  cannot  claim  an 
exemption  for  more  carriages  than  are  necessary  for  the 
safe,  speedy,  and  convenient  conveyance  of  the  mail." 

From  Taney's  judgment,  Justice  McLean  dissented,  pri- 
marily on  the  ground  that  "the  mail  of  the  United  States 
is  not  the  property  of  the  United  States,"  and  that  charging 
tolls  for  its  passage  was  not  in  violation  of  the  compact. 
Justice  Daniels,  however,  objected  upon  different  grounds, 
and  declared  that  it  was  necessary  to  consider  "the  opera- 
tion and  effect  of  the  compact  insisted  upon  as  controlled 
and  limited  by  the  powers  of  both  contracting  parties." 

"  I  hold  then,"  he  declared,  "  that  neither  Congress  nor  the 
federal  government  in  the  exercise  of  all  or  any  of  its 
powers  or  attributes  possesses  the  power  to  construct  roads, 
nor  any  other  description  of  what  have  been  called  internal 
improvements  within  the  limits  of  the  states.  That  the 
territory  and  soil  of  the  several  states  appertain  to  them  by 
title  paramount  to  the  Constitution,  and  cannot  be  taken, 
save  with  the  exception  of  those  portions  which  might  be 
ceded  for  the  seat  of  the  federal  government  and  for  sites 
permitted  to  be  purchased  for  forts,  arsenals,  dockyards, 
etc.  That  the  power  of  the  federal  government  to  acquire, 
and  that  of  the  states  to  cede,  to  that  government  portions  of 
their  territory,  are  by  the  Constitution  limited  to  the  in- 
stances above  adverted  to,  and  that  these  powers  can  neither 
be  enlarged,  nor  modified,  but  in  virtue  of  some  new  faculty 
to  be  imparted  by  amendments  of  the  Constitution. 

"I  believe  that  the  authority  vested  in  Congress  by  the 
Constitution  to  establish  postroads,  confers  no  right  to  open 
new  roads,  but  implies  nothing  beyond  a  discretion  in  the 
government  in  the  regulations  it  may  make  for  the  post- 
office  department  for  the  selection  amongst  the  various 
routes,  whilst  they  continue  in  existence,  of  those  along 


9<D  THE   POSTAL   POWER   OF   CONGRESS 

which  it  may  be  deemed  most  judicious  to  have  the  mails 
transported.  I  do  not  believe  that  this  power  given  to 
Congress  expresses  or  implies  anything  peculiar  in  relation 
to  the  means  or  modes  of  transporting  the  public  mail,  or 
refers  to  any  supposed  means  or  modes  of  transportation 
beyond  the  usual  manner  existing  and  practised  in  the 
country,  and  certainly  it  cannot  be  understood  to  destroy  or 
in  anywise  to  affect  the  proprietary  rights  belonging  to  in- 
dividuals or  companies  vested  in  those  roads.  It  guarantees 
to  the  government  the  right  to  avail  itself  of  the  facilities 
offered  by  those  roads  for  the  purposes  of  transportation, 
but  imparts  to  it  no  exclusive  rights — it  puts  the  govern- 
ment upon  the  footing  of  others  who  would  avail  themselves 
of  the  same  facilities." 

For  these  reasons,  "the  government  could  legally  claim 
no  power  to  collect  tolls,  no  exemption  from  tolls,  nor  any 
diminution  of  tolls  in  their  favor,  purely  in  consequence  of 
their  having  expended  money  on  the  road,  and  without  the 
recognition  by  Pennsylvania  of  that  expenditure  as  a  condi- 
tion in  any  contract  they  might  make  with  that  state." 
Nevertheless  the  United  States  could  contract  with  Penn- 
sylvania, and  so  Justice  Daniels  examined  the  terms  of  the 
agreement,  coming  to  the  conclusion  that  by  its  terms,  United 
States  mail  was  not  exempt  from  toll  charges.85 

While  the  authority  of  the  majority  opinion  in  this  case 
is  somewhat  lessened  by  the  fact  that  the  argument  was  as 
to  the  meaning  of  the  compact,  it  was  held,  impliedly  at 
least,  that  in  order  to  carry  out  one  of  its  delegated  powers, 
— the  establishment  of  postoffices  and  postroads, — the  United 

85  See  also  Neil  v.  Ohio,  3  How.  720  (1845),  and  Achison  v.  Hud- 
dleson,  12  How.  293  (1851).  Congress,  under  an  act  approved  Feb- 
ruary 25,  1867,  granted  the  state  of  Oregon  certain  lands  for  the 
construction  of  a  military  road,  with  the  reservation  that  it  should 
be  free  for  the  passage  of  federal  property,  troops  or  mails.  An 
incorporated  company  undertook  construction  of  the  road,  but  was 
not  permitted  to  charge  tolls.  It  was  provided  in  the  grant  that 
bridges  should  be  constructed  to  permit  the  use  of  the  road  by 
wagons.  This  was  done  by  parties  other  than  the  road  company, 
and  when  mail  contractors  paid  them  tolls  they  had  a  right  of  action 
for  reimbursement  from  the  feasor  company.  Schutz  v.  Dalles 
Military  Road  Co.,  7  Or.  259  (1879). 


POWER   OF   CONGRESS   TO   ESTABLISH    POSTROADS  QI 

States  might,  by  compact,  enter  upon  a  scheme  of  internal 
improvements.  Furthermore,  the  court,  by  holding  that  the 
general  government  had  the  right  to  enter  into  the  compact 
of  surrender,  recognized  an  original  federal  interest  in  the 
Cumberland  Road.  The  clear  import  of  the  majority 
opinion  is,  I  think,  that  if  Taney  had  considered  it  necessary 
to  pass  upon  the  point,  Congress  would  have  been  accorded 
the  right  to  construct  postroads,  and  this  would  have  in- 
cluded authority  to  charge  tolls  for  the  use  of  the  highways 
by  others  than  the  postoffice  department.86 

These  adjudications  were  carried  a  long  step  further 
when  the  Supreme  Court  asserted  the  federal  right  of  emi- 
nent domain  which  had  been  foreshadowed  in  the  Dickey 
case,  but  not  exercised  by  Congress.87  In  1864  the  North- 
ern Pacific  Railroad  was  incorporated,  and  lands  were 
granted  to  aid  in  the  construction,  but  the  act  provided  that 
the  company  "  shall  obtain  the  consent  of  the  legislature  of 
any  state  through  which  any  portion  of  said  railroad  line 
may  pass,  previous  to  commencing  the  construction  thereof." 
Congress  reserved  the  right  to  appeal  or  amend  the  act, 
"to  secure  to  the  government  at  all  times  (but  particularly 
in  time  of  war)  the  use  and  benefits  of  the  same  for  postal, 
military  and  other  purposes."88  In  1868,  however,  Con- 
gress undertook  improvements  in  the  Mississippi  River,  and 
authorized  its  agents  to  take  possession  of  the  necessary 
materials  "  after  having  first  paid  or  secured  to  be  paid,  the 

86  Young,  The  Cumberland  Road,  p.  100.    The  question  of  state 
tolls  on  mail  carriers  will  be  treated  in  the  chapter  on  "  The  Power 
of  the  States  to  Interfere  with  the  Mails." 

87  "  The  government  of  the  United  States  cannot  construct  a  post- 
road  within  a  state  of  this  union  without  its  consent;  but  Congress 
may  declare,  that  is,  establish,  such  a  road  already  opened  and  made 
a  public  highway  by  the  direct  or  indirect  authority  of  the  state.  .  .  . 
The  United  States  have  the  mere  right  of  transit  over  these  roads 
for  the  purpose  of  carrying  the  mail,  and  in  case  of  obstructing  this 
right  their  laws  provide  an  adequate  remedy.  .  .  .  The  act  of  Con- 
gress making  all  railroads  postroads  means  only  such  as  have  char- 
ters from  the  several  states."     Cleveland,  P.  &  A.  R.  Co.  v.  Franklin 
Canal  Co.,  5  Fed.  Cas.  1044  (1853). 

88  13  Stat.  L.  365. 


92  THE   POSTAL   POWER   OF   CONGRESS 

value  thereof  which  may  have  been  ascertained  in  the  mode 
provided 'by  the  laws  of  the  state."89 

When  the  question  came  before  the  courts  there  was  little 
hesitancy  in  holding  that  Congress  had  a  right  of  eminent 
domain.  The  Circuit  Court  for  the  Southern  District  ot 
Ohio  declared  that  "the  constitutional  provisions  giving  to 
Congress  authority  to  establish  postoffices  and  postroads, 
and  to  make  all  laws  for  carrying  into  effect  the  enumer- 
ated powers,  taken  together  with  the  declaration  that  all  laws 
made  in  pursuance  of  the  Constitution  shall  be  the  supreme 
law  of  the  land,  invest  Congress  with  authority  to  condemn 
lands  situated  within  a  state  for  use  as  a  postofnce  site."90  A 
holding  to  the  same  effect  was  made  by  the  Supreme  Court 
of  the  United  States  which  declared : 

"  It  is  true,  this  power  of  the  federal  government  has  not 
heretofore  been  exercised  adversely;  but  the  non-user  of  a 
power  does  not  disprove  its  existence.  ...  If  the  United 
States  have  the  power,  it  must  be  complete  in  itself.  It  can 
neither  be  enlarged  nor  diminished  by  a  state.  Nor  can  any 
state  prescribe  the  manner  in  which  it  must  be  exercised. 
The  consent  of  a  state  can  never  be  a  condition  precedent  to 
its  enjoyment."91 

But  before  this  right  of  eminent  domain  was  recognized, 
a  broad  legislative  control  had  been  assumed  over  the  high- 
ways of  the  country.  In  1838  Congress  declared  "  that  each 
and  every  railroad  within  the  limits  of  the  United  States 
which  now  is,  or  hereafter  may  be  made  and  completed, 
shall  be  a  postroute,"92  and  in  1856,  the  Supreme  Court 
(under  the  commerce  clause,  however)  sanctioned  a  further 
extension. 

Bridges  across  the  Ohio  River  at  Wheeling  were  alleged 
by  the  State  of  Pennsylvania  to  be  an  obstruction  of  naviga- 
tion and  their  removal  was  ordered  by  the  Supreme  Court. 

89 15  Stat.  L.  124. 

90  U.  S.  v.  Inlots,  26  Fed.  Cas.  482  (1873).     See  also  Trombley  v. 
Humphrey,  23  Mich.  472  (1871),  and  I  Kent's  Comm.  268,  Note  A. 

91  Kohl  v.  U.  S,  91  U.  S.  367  (1875). 
32  5  Stat.  L.  283. 


POWER   OF   CONGRESS   TO   ESTABLISH    POSTROADS  93 

The  decree  had  not  been  executed  when,  by  act  of  Congress 
(1852),  the  bridges  were  "declared  to  be  lawful  structures 
in  their  present  positions  and  elevations,  and  shall  be  so  held 
and  taken  to  be,  anything  in  the  law  or  laws  of  the  United 
States  to  the  contrary  notwithstanding,"  and  further,  "that 
the  said  bridges  be  declared  to  be  and  are  established  post- 
roads  for  the  passage  of  the  mails  of  the  United  States." 

Later,  the  main  bridge  being  blown  down,  the  Supreme 
Court  granted  an  injunction  restraining  the  reconstruction. 
The  company  disregarded  the  order  and  upon  motions  by 
the  plaintiff  to  attach  the  defendant's  property  for  contempt, 
and  by  the  company  to  dissolve  the  injunction,  the  Supreme 
Court  held  that  the  act  of  Congress  vacated  the  decree  and 
superseded  its  effect  and  operation.  The  Court  said : 

"  We  do  not  enter  upon  the  question,  whether  or  not  Con- 
gress possess  the  power,  under  the  authority  of  the  Con- 
stitution, '  to  establish  postoffices  and  postroads '  to  legalize 
this  bridge;  for,  concluding  that  no  such  powers  can  be 
derived  from  this  clause,  it  must  be  admitted  that  it  is,  at 
least,  necessarily  included  in  the  powers  conferred  to  regu- 
late commerce  among  the  several  states."93 

By  the  act  of  March  2,  i86i,94  moreover,  the  monopoly 
provisions  of  earlier  statutes  were  extended  to  all  post- 
routes,  already  or  thereafter  established,  but  letter  carrier 
routes  within  cities  did  not  become  postroads  until  so  de- 
clared by  Congress  in  1872,  and  at  the  present  time,  in  addi- 
tion to  railroads  and  routes  for  the  collection  and  delivery  of 


93  Pennsylvania  v.   Wheeling  Bridge  Co.,   18  How.  421    (1856)  ; 
see  also  13  How.  518  (1852). 

94  12  Stat.  L.  205.     See  Blackham  v.  Gresham,  16  Fed.  Rep.  609 
(1883),  and  U.  S.  v.  Kpchersperger,  26  Fed.  Cas.  803  (1860),  where 
it  was  said :  "  The  public  streets  of  a  municipal  town  over  which  the 
mail  may  be  carried  in  any  of  the  routes  established  by  Congress  as 
postroads,   are  doubtless,   postroads   for  the   passage  of   the  mail. 
Whether  the  streets  of  such  a  town  can  be  established  by  Congress 
as  postroads  for  any  other  purpose  is  questionable.  ...  So  far  as 
the  prohibition  of  private  letter  carrying  within  the  limits  of  such  a 
town   may  be  concerned,   the   legislative   power   which   is   wanting 
under  the  head  of  postroads,   may,   perhaps,  be  incidental  to  the 
execution  of  the  power  to  establish  postoffices.     If  this  be  so,  the 
point  may  be  of  little  ultimate  practical  importance."    Blackham  v. 
Gresham  upheld  the  act  of  1861. 


94  THE   POSTAL   POWER   OF   CONGRESS 

the  mail,  the  following  are  established  as  postroads :  all 
waters  of  the  United  States,  canals,  and  plank  roads  during 
the  time  the  mail  is  carried  thereon ;  "  the  road  on  which  the 
mail  is  carried  to  supply  any  courthouse  which  may  be  with- 
out a  mail,  and  the  road  on  which  the  mail  is  carried  under 
contract  made  by  the  postmaster  general  for  extending  the 
line  of  posts  to  supply  mails  to  postoffices  not  on  any  estab- 
lished route,  during  the  time  such  mail  is  carried  thereon  " ; 
and  "all  public  roads  and  highways  while  kept  up  and 
maintained  as  such."95  In  order  to  insure  the  safe  passage 
of  the  mails,  the  federal  government  may  take  all  necessary 
measures  to  remove  obstructions  and  prevent  depredations, 
even  on  the  public  streets  of  a  town. 

Finally,  under  three  grants  in  the  Constitution, — to  regu- 
late commerce,  to  establish  postoffices  and  postroads,  and  to 
raise  and  support  armies, — Congress  has  chartered  trans- 
continental railway  companies  and  bridge  companies.  It 
has,  moreover,  granted  to  these  corporations  the  power  of 
eminent  domain  to  be  exercised  without  the  consent  or  per- 
mission of  the  states.  In  holding  that  the  franchises  of  the 
Union  Pacific  Railroad  Company  were  federal  franchises, 
properly  granted,  and  beyond  the  power  of  the  state  to  tax, 
the  Supreme  Court  said: 

"  It  cannot  at  the  present  day  be  doubted  that  Congress 
under  the  power  to  regulate  commerce  among  the  several 
states,  as  well  as  to  provide  for  postal  accommodations  and 
military  exigencies,  had  authority  to  pass  these  laws.  The 
power  to  construct,  or  to  authorize  individuals  or  corpora- 
tions to  construct,  national  highways  and  bridges  from  state 
to  state,  is  essential  to  the  complete  control  and  regulation 
of  interstate  commerce.  Without  authority  in  Congress  to 
establish  and  maintain  such  highways  and  bridges,  it  would 
be  without  authority  to  regulate  one  of  the  most  important 
adjuncts  of  commerce.  This  power  in  former  times  was 
exerted  to  a  very  limited  extent,  the  Cumberland  or  National 
Road  being  the  most  notable  instance.  Its  exertion  was  but 

95  See  Postal  Laws  and  Regulations  of  1913,  p.  605. 


POWER   OF   CONGRESS   TO   ESTABLISH    POSTROADS  95 

little  called  for,  as  commerce  was  then  mostly  conducted  by 
water,  and  many  of  our  statesmen  entertained  doubts  as  to 
the  existence  of  the  power  to  establish  ways  of  communica- 
tion by  land.  But  since,  in  consequence  of  the  expansion 
of  the  country,  the  multiplication  of  its  products,  the  inven- 
tion of  railroads  and  locomotion  by  steam,  land  transporta- 
tion has  so  vastly  increased,  a  sounder  consideration  of  the 
subject  has  prevailed,  and  led  to  the  conclusion  that  Con- 
gress has  plenary  power  over  the  whole  subject.  Of  course, 
the  authority  of  Congress  over  the  territories  of  the  United 
States,  and  its  power  to  grant  franchises  exercisable  therein, 
are,  and  ever  have  been,  undoubted.  But  the  wider  power 
was  very  freely  exercised,  and  much  to  the  general  satis- 
faction, in  the  creation  of  the  vast  system  of  railroads  con- 
necting the  East  with  the  Pacific,  traversing  states  as  well  as 
territories  and  employing  the  agency  of  state  as  well  as 
federal  corporations."96 

Early  attempts,  then,  by  Congress  to  furnish  postal  facili- 
ties and  open  up  communication  through  the  construction  of 
highways  for  the  carriage  of  the  mails,  met  with  denials  that 
the  power  "to  establish  postroads"  meant  more  than  the 
power  to  designate  the  roads  to  be  used,  and  that,  even  if 
this  were  not  so,  any  action  could  be  taken  without  the  con- 
sent of  the  states  whose  territory  was  to  be  used.  To  permit 
national  undertakings,  however,  Monroe  developed  the  dis- 
tinction that  Congress  might  appropriate  for  roads  to  be 
laid  out  with  the  consent  of  the  states,  but  that  the  national 
government  had  no  jurisdictional  rights  to  construct,  repair 
or  keep  the  highways  free  from  obstructions.  This  dis- 
tinction, which  Von  Hoist  called  a  "  quibble  on  words,"  was 
abandoned  by  John  Quincy  Adams,  who  was  a  stanch  advo- 
cate of  federal  aid,  but  was  revived  by  Jackson,  who  be- 
lieved that  appropriations  could  be  made  for  national,  but 
not  for  local  purposes.  In  Congress,  during  the  whole  of 
this  period,  various  views  were  expressed,  but  the  better 

96  California  v.  Pacific  Railroad  Co.,  127  U.  S.  i  (1888).  Cases 
involving  these  points  will  be  treated  in  a  later  chapter  on  "The 
Extension  of  Federal  Control  over  Postroads." 


96  THE   POSTAL   POWER   OF    CONGRESS 

opinion,  accepted  by  the  authority,  if  not  by  the  majority,  of 
the  speakers,  was  that  Congress  had  powers  (occasionally 
exercised)  which  were  broader  than  the  executives  were  dis- 
posed to  concede. 

The  continued  assertion  by  the  states  of  plenary  authority 
and  the  failure  of  Congress  to  adopt  any  successful  plan  by 
which  the  Cumberland  Road  might  be  kept  in  repair,  led 
to  compacts  of  surrender  under  which  the  national  authori- 
ties gave  up  all  control  over  this  highway.  The  meaning  of 
these  compacts  was  examined  by  the  Supreme  Court  of  the 
United  States,  and  the  plain  implication  of  the  decisions 
(although  definite  expressions  were  not  necessary  for  the 
determination  of  the  particular  questions  presented)  is  that 
Congress  had  the  right  to  construct  postroads  and  to  charge 
tolls  for  their  use  by  others  than  postal  officials.  This  power 
had  already  been  conceded  in  an  illuminating  opinion  by  the 
Kentucky  Court  of  Appeals,  and  the  subsequent  decisions 
recognizing  a  right  of  eminent  domain  in  the  federal  govern- 
ment and  sanctioning  the  federal  incorporation  of  railway 
and  bridge  companies,  are  conclusive  authority  that  Con- 
gress had  the  power  which  the  more  liberal  of  its  members 
asserted,  but  which  the  states  and  occasional  executives 
denied.  That  the  power  to  establish  postroads  comprehends 
the  power  to  construct  (compensation  being  made  to  the 
states),  to  levy  tolls,  and  to  repair  and  keep  free  from 
obstructions,  has  thus  been  assured  by  judicial  decisions  as 
well  as  by  a  fair  interpretation  of  the  words  of  the  grant ; 
and  any  fancied  taint  of  unconstitutionality  has  been  re- 
moved from  laws  which  Congress  passed  under  its  plenary 
power  "to  establish  postroads,"  but  which  exceeded  the 
limitations  laid  down  by  the  strict  obstructionists,  and 
did  not  come  before  the  Supreme  Court  for  a  determination 
of  their  validity. 


CHAPTER   IV 
LIMITATIONS  ON  THE  POSTAL  POWER 

Like  all  grants  to  Congress,  the  postal  power  is  not  unre- 
strained, but,  as  the  Supreme  Court  has  expressed  it,  the 
difficulty  in  setting  limits  beyond  which  it  may  not  go,  arises, 
"  not  from  want  of  power  in  Congress  to  prescribe  the 
regulations  as  to  what  shall  constitute  mail  matter,  but  from 
the  necessity  of  enforcing  them  consistently  with  the  rights 
reserved  to  the  people,  of  far  greater  importance  than  the 
transportation  of  the  mail."1  One,  and  perhaps  the  most 
important,  of  these  rights  is  involved  when  restrictions  are 
applied  to  periodical  publications  (particularly  in  reference 
to  obscene  matter  and  lottery  tickets),  and  the  question  is  at 
once  raised  as  to  the  freedom  of  the  press,  guaranteed 
against  abridgment  by  the  second  clause  of  the  first  amend- 
ment to  the  Federal  Constitution.2  The  extent  to  which  this 
limitation  has  been  ignored  is  a  moot  question.  On  the  one 
hand,  we  have  the  confident  assertion  of  Von  Hoist3  that 
"the  freedom  of  the  press  has  become  a  part  of  the  flesh 
and  blood  of  the  American  people  to  such  an  extent,  and  is 
so  conditioned  by  the  democratic  character  of  their  political 
and  social  life,  that  a  successful  attack  upon  it,  no  matter 
what  legal  authority  it  might  have  on  its  side,  is  impossible. 
Even  the  gigantic  power  of  slavocracy  gave  up  the  battle  as 
hopeless  after  the  first  onslaught." 

On  the  other  hand,  Hannis  Taylor  in  his  recent  work  on 
the  American  Constitution  remarks  that  "  little  need  be  said 

1  Ex  parte  Jackson,  96  U.  S.  727  (1878). 

2 "  Congress  shall  make  no  law  .  .  .  abridging  the  freedom  of 
speech  or  of  the  press."  An  executive  order,  deriving  its  validity 
from  an  act  of  Congress  would,  of  course,  be  illegal  if  abridging 
the  liberty  of  the  press,  even  though  the  act  itself  did  not 

3  Von  Hoist,  Constitutional  History  of  the  United  States,  vol.  ii, 
p.  127. 

7  97 


98  THE   POSTAL   POWER   OF   CONGRESS 

as  to  the  clause  forbidding  Congress  to  pass  any  law 
'  abridging  the  freedom  of  the  press/  as  that  clause  has  been 
removed  from  the  Constitution,  so  far  as  the  mails  are  con- 
cerned, by  the  judgment  rendered  in  1892,  In  Re  Rapier."4 
And  this  extreme  view  may  be  said  to  have  received  some 
support  from  a  recent  decision  of  the  Supreme  Court  which 
upheld  the  power  of  Congress  to  compel  newspapers  to  pub- 
lish certain  information  concerning  their  internal  affairs, 
under  penalty,  for  refusal,  of  being  denied  the  advantages 
of  low  second  class  rates.5  Which,  then,  is  the  correct  view 
as  to  the  inviolability  or  abrogation  of  this  constitutional 
guarantee  in  relation  to  the  mails? 

Freedom  of  the  Press. — In  the  Convention  which  framed 
the  Federal  Constitution,  Mr.  Pinckney,  on  August  20,  1787, 
submitted  a  number  of  propositions  among  which  was  a 
guarantee  that  "  the  liberty  of  the  Press  shall  be  inviolably 
preserved."6  The  propositions  were  referred  to  the  Com- 
mittee of  Detail,  and  when  the  question  again  came  up  for 
consideration  on  September  14,  Mr.  Pinckney  and  Mr. 
Gerry  "  moved  to  insert  a  declaration  that  the  liberty  of  the 
Press  should  be  inviolably  observed."  This  motion  was 
lost,  Mr.  Sherman  remarking  that  "  it  is  unnecessary.  The 
power  of  Congress  does  not  extend  to  the  Press."7 

During  the  discussion  of  the  Constitution  by  the  States, 
however,  the  absence  of  a  guarantee  of  the  freedom  of  the 
press  was  frequently  adverted  to.  Speaking  in  the  South 
Carolina  House  of  Representatives,  Mr.  C.  C.  Pinckney 
said: 

"  With  regard  to  the  liberty  of  the  press,  the  discussion  of 
that  matter  was  not  forgotten  by  the  members  of  the  Con- 
vention. It  was  fully  debated,  and  the  impropriety  of  say- 
ing anything  about  it  in  the  Constitution  clearly  evinced. 


*The  Origin  and  Growth  of  the  American  Constitution,  p.  230. 

5  Lewis  Publishing  Co.  v.  Morgan,  229  U.  S.  288  (1913). 

6  Farrand,  vol.  ii,  pp.  334,  341. 

7  Ibid.,  pp.  617,  618;  in  Pinckney's  plan  there  was  a  limitation  upon 
Congress  to  preserve  the  freedom  of  the  press.     Ibid.,  vol.  iii,  pp. 
599,  609.     A  motion  was  made  in  the  convention  to  appoint  a  com- 
mittee to  prepare  a  bill  of  rights  and  was  unanimously  rejected. 
Ibid.,  vol.  ii,  p.  582. 


LIMITATIONS    ON    THE    POSTAL    POWER  99 

The  general  government  has  no  powers  but  what  are  ex- 
pressly granted  to  it ;  it  therefore  has  no  power  to  take  away 
the  liberty  of  the  press.  That  invaluable  blessing  which 
deserves  all  the  encomiums  the  gentleman  has  justly  be- 
stowed upon  it,  is  secured  by  all  our  state  constitutions ;  and 
to  have  it  mentioned  in  our  general  Constitution  would 
perhaps  furnish  an  argument,  hereafter,  that  the  general 
government  had  a  right  to  exercise  powers  not  expressly 
delegated  to  it."8 

A  different  theory  was  advanced  by  Hamilton,  who,  an- 
swering the  objection  that  the  Constitution  contained  no  bill 
of  rights,  and  treating  specifically  the  absence  of  any  provi- 
sion safeguarding  the  press,  asked:  "What  signifies  a 
declaration  that  '  the  liberty  of  the  press  shall  be  inviolably 
preserved?'  What  is  the  liberty  of  the  press?  Wlio  can 
give  it  any  definition  which  would  not  leave  the  utmost  lati- 
tude for  evasion?  I  hold  it  to  be  impracticable;  and  from 
this  I  infer  that  its  security,  whatever  fine  declarations  may 
be  inserted  in  any  Constitution  respecting  it,  must  altogether 
depend  upon  public  opinion,  and  on  the  general  spirit  of  the 
people  and  of  the  government.  .  .  ."9 

8  Farrand,  vol.  Hi,  256;  Elliot's  Debates,  vol.  iv,  pp.  315,  316.     Mr. 
Pinckney  obviously  overlooked  the  possibility  that  the  freedom  of 
the  press  might  incidentally  be  limited  through  the  exercise  by  Con- 
gress of  one  of  its  delegated  powers,  a  possibility  which  became 
stronger  when  the  doctrine  of  implied  powers  was  developed.     Par- 
ticularly was  this  true  in  reference  to  postoffice  regulations. 

9  The  Federalist,  No.  84.     In  a  footnote  Hamilton  scouts  the  idea 
that  the  liberty  of  the  press  may  be  affected  by  duties  on  publica- 
tions which  might  be  "  so  high  as  to  amount  to  a  prohibition.  .  .  . 
We  know  that  newspapers  are  taxed  in  Great  Britain,  and  yet  it  is 
notorious  that  the  press  nowhere  enjoys  greater  liberty  than  in  that 
country."    The  extent  of  duties,  if  levied,  "must  depend  on  legis- 
lative discretion,  regulated  by  public  opinion.  ...  It  would  be  quite 
as  significant  to  declare  that  the  government  ought  to  be  free,  that 
taxes  ought  not  to  be  excessive,  etc.,  as  that  the  liberty  of  the  press 
ought  not  to  be  restrained."     Newspapers  were  in  fact  taxed  during 
the  Civil  War,  and  revenue  to  the  amount  of  $980,089  was  raised  by 
this    means.     Lalor,    Encyclopaedia    of    Political    Science,     (Art., 
"  Press"),  vol.  iii,  321. 

Commenting  upon  Hamilton's  position,  Story  remarked:  "The 
want  of  a  bill  of  rights  then,  is  not  either  an  unfounded  or  illusory 
objection.  The  real  question  is  not,  whether  every  sort  of  right  or 
privilege  or  claim  ought  to  be  affirmed  in  a  constitution  ;  but  whether 
such,  as  in  their  own  nature  are  of  vital  importance,  ought  not  to 
receive  this  solemn  sanction."  Story,  Commentaries,  vol.  iii,  p.  721. 


IOO  THE   POSTAL   POWER   OF   CONGRESS 

A  proposal  to  guarantee  the  freedom  of  the  press  was, 
however,  a  part  of  the  plan  for  a  bill  of  rights  which 
Madison  introduced  in  Congress  on  June  8,  I789.10  Such  a 
federal  provision  had  been  suggested  by  the  ratifying  con- 
ventions of  three  states,  and  similar  provisions  were  con- 
tained in  nine  state  constitutions.11  Madison's  proposal  was 
amended  until  it  provided  that  "  the  freedom  of  speech  and 
of  the  press  .  .  .  shall  not  be  infringed  "  and  its  language 
was  further  modified  until  it  took  the  form  in  which  it 
became  a  part  of  the  Constitution. 

Concerning  the  meaning  of  the  amendment  at  the  time  of 
its  adoption,  there  has  been  little,  if  any  controversy,  in  spite 
of  Hamilton's  declaration  to  the  contrary.  Blackstone  had 
announced  a  generally  accepted  rule  when  he  said  that 
the  liberty  of  the  press  "consists  in  laying  no  previous  re- 
straint upon  publications,  and  not  in  freedom  from  censure 
for  criminal  matter  when  published.  Every  freeman  has 
an  undoubted  right  to  lay  what  sentiments  he  pleases  before 
the  public ;  to  forbid  this,  is  to  destroy  the  freedom  of  the 
press ;  but  if  he  publishes  what  is  improper,  mischievous,  or 
illegal,  he  must  take  the  consequence  of  his  own  temerity. 
...  To  punish  (as  the  law  does  at  present)  any  danger- 
ous or  offensive  writings,  which,  when  published,  shall,  on  a 
fair  and  impartial  trial  be  adjudged  of  a  pernicious  tend- 
ency, is  necessary  for  the  preservation  of  the  peace  and 
good  order,  of  government  and  religion,  the  only  founda- 
tions of  civil  liberty."12 

In  the  celebrated  case  of  People  v.  Croswell,  Alexander 
Hamilton  appearing  as  counsel  for  the  traverser,  laid  down 

10  Annals  of  ist  Congress,  vol.  i,  p.  434. 

11  Elliot's  Debates,  vol.  ii,  p.  552;  vol.  iii,  659;  Thorpe,  Constitu- 
tional History,  vol.  ii,  204. 

12  Cooler's  Blackstone,  Book  iv,  pp.  151,  152.     Lord  Kenyon's  view 
was  practically  the  same.    He  said :  "  A  man  may  publish  anything 
which  twelve  of  his  countrymen  think  is  not  blamable,  but  he  ought 
to  be  punished  if  he  publishes  what  is  blamable."    Rex  v.  Cuthill,  27 
St.  Trials,  675.     Cf.  Professor  Dicey' s  classic  statement:  "Freedom 
of  discussion  is,  then,  in  England  little  else  than  the  right  to  write 
or  say  anything  which  a  jury,  consisting  of  twelve  shopkeepers, 
think  it  expedient  should  be  said  or  written."    Law  of  the  Consti- 
tution (8th  ed.),  p.  242. 


LIMITATIONS   ON   THE   POSTAL   POWER  IOI 

the  following  rule  which  was  unsupported  by  the  English 
common  law,  but  which  has  been  accepted  as  a  proper  defini- 
tion by  a  number  of  the  present-day  state  constitutions. 
Hamilton  said : 

"  The  liberty  of  the  press  consists,  in  my  idea,  in  publish- 
ing the  truth,  from  good  motives,  and  for  justifiable  ends, 
though  it  reflect  on  the  government,  on  magistrates,  or  indi- 
viduals. ...  It  is  essential  to  say,  not  only  that  the  measure 
is  bad  and  deleterious,  but  to  hold  up  to  the  people  who  is 
the  author,  that  in  this  our  free  and  elective  government,  he 
may  be  removed  from  the  seat  of  power."13  And  Story 
was  of  the  opinion  that  the  guarantee  "  is  neither  more  nor 
less,  than  an  expansion  of  the  great  doctrine,  recently 
brought  into  operation  in  the  law  of  libel,  that  every  man 
shall  be  at  liberty  to  publish  what  is  true,  with  good  motives, 
and  for  justifiable  ends."14 

The  amendment  guaranteeing  the  freedom  of  the  press 
has  never  been  before  the  Supreme  Court  of  the  United 
States  in  such  a  manner  that  a  comprehensive  consideration 
of  its  meaning  and  effect  has  been  entered  upon.  This  is 
true  even  of  those  cases  in  which  the  issue  was  as  to  the 
constitutionality  of  laws  denying  newspapers  the  use  of  the 
mails  for  various  reasons.15  In  fact,  the  most  important 
dictum  of  the  Supreme  Court  occurs  in  a  case  where  a 
federal  law  was  not  involved,  the  Court  adopting  Black- 
stone's  definition  and  holding  that  "the  main  purpose  of 
such  constitutional  provisions  is  to  *  prevent  all  such  previous 
restraints  upon  publications  as  had  been  practised  by  other 
governments/  and  they  do  not  prevent  subsequent  punish- 

13  3  Johns.  Cas.  (N.  Y.)  337  (1798)  ;  Hamilton's  Works  (Lodge's 
Ed.),  vol.  vii,  p.  339.     See  the  able  analysis  of  Hamilton's  definition 
by   Professor    Schofield,    "Freedom    of   the    Press    in    the   United 
States,"  in  Proceedings  of  the  American  Sociological  Society,  vol. 
ix,  p.  67,  at  p.  88  ff.  (1915). 

14  Story,  Commentaries,  vol.  iii,  p.  732.     To  the  same  effect  is  Kent, 
Commentaries,   vol.    ii,    lee.   24.    A   different   contention,    however, 
seems  to  have  been  made  by  Tucker,  Blackstone's  Commentaries, 
vol.  ii,  App.,  Note  G,  pp.  11-30. 

15  These  cases  will  be  considered  later  in  this  chapter. 


IO2  THE   POSTAL   POWER   OF   CONGRESS 

ment  of  such  as  may  be  deemed  contrary  to  the  public 
welfare."16 

The  cases,  as  well  as  the  text-writers,  seem  to  settle  that 
the  first  amendment  to  the  Federal  Constitution  announced 
no  new  principles ;  it  must  be  interpreted  in  reference  to  its 
meaning  at  common  law.  The  principal  inhibition  upon  the 
legislature  is  in  the  enactment  of  previous  restraints,  but 
even  here  not  absolutely.  By  the  civil  law  of  libel,  as  it 
was  when  the  Constitution  was  adopted,  the  one  publishing 
had  to  answer  for  personal  wrongs,  and  the  criminal  law 
could  punish  for  defamatory,  obscene,  blasphemous  or  sedi- 
tious libels.  To  this  extent,  there  could  be,  and,  in  fact, 
were,  previous  restraints.17 

But  a  recent  writer,  after  an  able  consideration  of  the 
early  declarations  in  the  light  of  their  history,  comes  to  the 

16  Patterson  y.  Colorado,  205  U.  S.  458  ( 1907) .     But  see  Mr.  Jus- 
tice Harlan's  dissent,  Professor  Schofield's  criticism  of  the  majority 
opinion  (Freedom  of  the  Press  in  the  United  States,  pp.  110-112), 
and  Respublica  v.  Oswald,  i  Ball.  319  ( 1788) .      In  U.  S.  v.  Cruikshank, 
92  U.  S.  542  (1876),  the  court  held:  "The  First  Amendment  to  the 
Constitution  .  .  .  like  the  other  amendments  proposed  and  adopted 
at  the  same  time,  was  not  intended  to  limit  the  powers  of  the  state 
governments  in  respect  to  their  own  citizens,  but  to  operate  upon 
the  national  government  alone.     '  The  scope  and  application  of  these 
amendments  are  no  longer  subjects  of  discussion  here.'    They  left 
the  authority  of  the  states  just  where  they  found  it,  and  added 
nothing  to  the  already  existing  powers  of  the  United  States." 

Professor  Schofield  is  of  the  opinion  that  the  Slaughter  House 
Cases,  16  Wall.  36  (1872),  are  authority  for  the  principle  that  "the 
right  to  publish  truth  on  matters  of  national  public  concern  is  one 
of  the  privileges  and  immunities  of  citizens  of  the  United  States 
protected  from  abridgment  by  any  state  by  the  first  prohibition  in 
the  Fourteenth  Amendment."  Freedom  of  the  Press  in  the  United 
States,  p.  113.  It  was  held  in  U.  S.  v.  Hall,  26  Fed.  Cas.  79  (1871), 
that  "the  right  of  freedom  of  speech,  and  other  rights  enumerated 
in  the  first  eight  articles  of  amendment  to  the  Constitution  of  the 
United  States,  are  the  privileges  and  immunities  of  citizens  of  the 
United  States,  that  they  are  secured  by  the  Constitution,  that  Con- 

§ress  has  the  power  to  protect  them  by  appropriate  legislation." 
ee  Lien,  Privileges  and  Immunities  of  Citizens  of  the  United  States, 
p.  69.  The  Supreme  Court  in  Patterson  v.  Colorado,  above,  refused 
to  decide  whether  the  liberty  of  the  press  declared  in  the  First 
Amendment,  is  included  by  the  word  "  liberty "  in  the  Fourteenth 
Amendment.  These  questions,  however,  are  outside  the  purview  of 
the  present  discussion. 

17  Patterson,  Liberty  of  the  Press,  Speech  and  Public  Worship, 
p.  61  ff. ;  2  Willoughby  on  the  Constitution,  844 ;  and  Townshend, 
Slander  and  Libel,  2d  ed.,  sec.  252. 


LIMITATIONS   ON   THE   POSTAL   POWER  1 03 

conclusion  that  "they  obliterated  the  English  common-law 
test  of  supposed  bad  tendency  to  determine  the  seditious  or 
blasphemous  character  of  a  publication,  and  hence  obliterated 
the  English  common-law  crimes  of  sedition  and  blasphemy  ; 
shifted  the  law  of  obscene  and  immoral  publications  from 
the  region  of  libel  to  the  region  of  public  nuisance;  and  left 
standing  only  the  law  of  defamatory  publications,  materially 
modifying  that."  Professor  Schofield  goes  on  to  say  that 
"  the  declarations  wiped  out  the  English  common-law  rule 
in  criminal  prosecutions  of  defamatory  libel,  'The  greater 
the  truth  the  greater  the  libel/  "  and  "  threw  on  American 
judges  in  civil  and  criminal  actions  for  defamatory  libel  the 
new  work  of  determining  what  is  truth  in  a  publication  on 
a  matter  of  public  concern."  The  correct  view,  in  this 
author's  opinion,  is  that  "if  liberty  of  the  press  in  the  First 
Amendment  means  anything  it  legalizes  published  truth  on 
all  matters  of  public  concern."18  Without,  however,  at- 
tempting to  pass  judgment  on  Professor  Schofield's  criticism 
of  the  cases,  it  will  be  possible,  from  either  view,  to  ascer- 
tain whether  the  freedom  of  the  press  has  ever  been  abridged 
by  the  denial  of  the  use  of  the  mails  (for  freedom  of  pub- 
lication includes,  although  perhaps  not  absolutely,  freedom  of 
circulation),  and  to  set  the  limits  of  congressional  action. 

Not  until  1836  was  there  any  serious  discussion  of  the 
meaning  of  the  phrase  "  liberty  of  the  press  "  and  the  limita- 
tions it  might  impose  upon  the  postal  regulations  which 
Congress  had  the  power  to  make.19  But  during  this  year 
an  exhaustive  debate  took  place  in  the  Senate  as  a  result  of 
President  Jackson's  message  (December  2,  1835)  urging 
the  enactment  of  legislation  to  check  the  incendiary  publica- 
tions with  which  the  Northern  abolitionists  were  flooding 


18  Schofield,  Freedom  of  the  Press  in  the  United  States,  pp.  78, 
79  and  no. 

19  The  freedom  of  the  press  had,  of  course,  figured  in  the  dis- 
cussion of  the  so-called  Sedition  Act  passed  by  Congress  on  July 
14,  1798.    It  was  a  factor  also  in  the  consideration  by  the  Senate 
(December,  1901)  of  legislation  "to  prevent  the  teaching  and  pro- 
mulgation of  anarchical  doctrines  in  the  United  States."     See  my 
paper,  "  Federal  Interference  with  the  Freedom  of  the  Press,"  23 
Yale  Law  Journal,  559  and  authorities  there  cited. 


IO4  THE   POSTAL   POWER   OF   CONGRESS 

the  slave  states.  The  evil  complained  of  was  serious,  and 
the  states  were  making  strenuous  objections  to  the  continued 
presence  in  the  mails  of  such  literature. 

On  July  29,  1835,  for  example,  the  Southern  Patriot  of 
Charleston,  S.  C,  complained  that  the  mails  from  the  North 
were  "literally  overburthened  with  the  newspaper  called 
'The  Emancipator '  and  two  tracts  entitled  'The  Anti- 
Slavery  Record  '  and  '  The  Slaves'  Friend/  "  This  was  de- 
clared a  "monstrous  abuse  of  the  public  mail"  and  the 
publications  were  denounced  as  moral  poison,  the  Patriot 
adding :  "If  the  general  post  office  is  not  at  liberty  [to 
prevent  circulation],  it  is  impossible  to  answer  for  the 
security  of  the  mail  in  this  portion  of  the  country,  which 
contains  such  poisonous  and  inflammatory  matter."20  The 
Charleston  postoffice  was  in  fact  entered,  and  this  particular 
consignment  of  papers  destroyed.  "  Extreme  cases  require 
extreme  remedies,"  said  the  Patriot,  and  the  Charleston 
Mercury  went  so  far  as  to  predict  that  anyone  violating  the 
South  Carolina  law  against  circulation  "would  assuredly 
expiate  his  offence  on  the  gallows."21  Practically  all  of  the 
Southern  States  had  extremely  stringent  statutes  and  several 
provided  capital  punishment  for  offenders.22 

This  occurrence  at  Charleston  led  Samuel  L.  Gouverneur, 
postmaster  at  New  York,  to  suggest  to  Amos  Kendall,  the 
postmaster  general,  that  the  transmission  of  such  papers  be 
suspended,  but  Arthur  Tappan,  president  of  the  American 
Anti-slavery  Society,  declined  to  surrender  "  any  rights  or 
privileges  which  we  possess  in  common  with  our  fellow 
citizens  in  regard  to  the  use  of  the  United  States  mail."23 

20  Niles'  Register,  vol.  xlviii,  p.  402. 

21  Ibid.,  p.  403. 

22  See  Kurd,  Law  of  Freedom  and  Bondage,  vol.  ii,  9,  10,  86,  97,, 
99,  147,  161,  170,  173.    The  Virginia  law  specifically  included  post- 
masters within  its  provisions.     One  indictment  under  the  Alabama 
law  was  based  upon  the  following  objectionable  language:   "God 
commands,  and  all  nature  cries  out,  that  man  should  not  be  held  as 
property.    The  system  of  making  men  property  has  plunged  2,250,000 
of  our  fellow  countrymen  into  the  deepest  physical  and  moral  degra- 
dation, and  they  are  every  moment  sinking  deeper."    Niles'  Regis- 
ter, vol.  xlix,  p.  358. 

23  Niles'  Register,  vol.  xlviii,  p.  447. 


LIMITATIONS   ON   THE   POSTAL   POWER  IO5 

Local  postmasters  nevertheless  began  to  take  matters  in 
their  own  hands.  In  regard  to  the  detention  of  incendiary 
matter  by  the  Charleston  postoffice,  Kendall  wrote : 

"  I  am  satisfied  that  the  postmaster  general  has  no  legal 
authority  to  exclude  newspapers  from  the  mail,  nor  prohibit 
their  carriage  or  delivery  on  account  of  their  character  or 
tendency,  real  or  supposed.  .  .  . 

"  The  post  office  department  was  created  to  serve  the  people 
of  each  and  all  of  the  United  States  and  not  to  be  used  as 
the  instrument  of  their  destruction.  .  .  .  Entertaining  these 
views,  I  cannot  sanction  and  will  not  condemn  the  step  you 
have  taken.  Your  justification  must  be  looked  for  in  the 
character  of  the  papers  detained,  and  the  circumstances  by 
which  you  are  surrounded."24  Kendall  left  it  to  the  dis- 
cretion of  the  local  postmasters  as  to  whether  they  would 
carry  out  their  official  duties,  or  obey  the  laws  of  the  local 
jurisdictions.25 

It  was,  therefore,  no  surprise  when  Jackson  adverted  to 
the  situation,  and  in  his  annual  message  asked  for  legisla- 
tion denying  such  publications  the  facilities  of  the  postoffice. 
President  Jackson  wrote : 

"  I  must  also  invite  your  attention  to  the  painful  excite- 
ment produced  in  the  south,  by  the  attempts  to  circulate, 
through  the  mails,  inflammatory  appeals  addressed  to  the 
passions  of  the  slaves,  in  prints,  and  in  various  sorts  of 
publications,  calculated  to  stimulate  them  to  insurrection 
and  to  produce  all  the  horrors  of  a  servile  war.  .  .  . 

"  In  leaving  the  care  of  other  branches  of  this  interesting 
subject  to  the  state  authorities,  to  whom  they  properly  be- 
long, it  is  nevertheless  proper  for  Congress  to  take  such 
measures  as  will  prevent  the  post  office  department,  which 
was  designed  to  foster  an  amicable  intercourse  and  cor- 
respondence between  all  members  of  the  confederacy,  from 
being  used  as  an  instrument  of  the  opposite  character.  The 
general  government  to  which  the  great  trust  is  confided  of 

24  Niles'  Register,  vol.  xlviii,  p.  448. 

25  The  legal  aspects  of  this  solution  of  the  problem  will  be  treated 
in  the  chapter  following. 


IO6  THE   POSTAL   POWER  OF   CONGRESS 

preserving  inviolate  the  relations  created  among  the  states 
by  the  Constitution  is  especially  bound  to  avoid,  in  its  own 
action,  anything  that  may  disturb  them.  I  would,  therefore, 
call  the  special  attention  of  Congress  to  the  subject,  and 
respectfully  suggest  the  propriety  of  passing  such  a  law  as 
will  prohibit,  under  severe  penalties,  the  circulation  in  the 
southern  states,  through  the  mail,  of  incendiary  publications 
intended  to  instigate  the  slaves  to  insurrection."26 

On  December  21,  1835,  Calhoun  moved  that  "  so  much 
of  the  President's  message  as  relates  to  the  transmission  of 
incendiary  publications  by  the  United  States  mail  be  re- 
ferred to  a  special  committee."  King  of  Alabama  ex- 
pressed the  opinion  of  several  that  the  regular  standing  com- 
mittee on  postoffices  would  do,  since  he  "  felt  a  confident 
belief  that  there  was  no  disposition  in  any  of  its  members 
to  have  the  public  mails  prostituted  to  a  set  of  fanatics." 
Preston  of  South  Carolina  thought  that  a  solution  of  the  evil 
could  be  arrived  at  by  a  method  other  than  barring  the  pub- 
lications from  the  mail.  He  proposed  "  that  the  depositing 
of  an  incendiary  publication  in  the  post  office  should  be  con- 
stituted an  offence  in  the  state  where  it  took  place,  and  the 
letting  of  it  out  of  the  post  office  should  be  equally  deemed 
an  offence  where  it  occurred."27  Nevertheless,  Calhoun's 
view  prevailed  and  the  message  was  referred  to  a  select 
committee  of  which  he  was  made  chairman.28  An  elaborate 
report  written  by  him  was  presented  to  the  Senate  on  Feb- 
ruary 4,  i836,29  but  with  the  unqualified  concurrence  of 
only  one  fellow  committeeman.  The  others  opposed,  either 
any  federal  action  at  all,  Calhoun's  theory  as  to  the  remedy, 

26  Statesman's  Manual,  vol.  ii,  p.  911. 

27  12  Debates  of  Congress,  26,  33. 

28  Calhoun  had  for  some  time  been  interested  in  the  problem,  his 
attitude  being  indicated  in  September,  when  he  wrote  to  the  editor 
of  the  Washington  Telegraph:  "The  indications  are  that  the  south 
will  be  unanimous  in  their  resistance  and  that  their  resistance  will 
be  of  the  most  determined  character,  even  to  the  extent  of  disunion ; 
if  that  should  be  necessary  to  arrest  the  evil.     I  trust,  however,  it 
may  be  arrested  far  short  of  such  extremity."     Niles'  Register,  vol. 
xlix,  49. 

29  12  Debates  of  Congress,  383;  Calhoun's  Works,  vol.  v,  p.  191. 


LIMITATIONS    ON    THE    POSTAL    POWER  IO/ 

or  some  of  the  details  of  the  measure  which  was  recom- 
mended. 

The  committee's  report  was  based  upon  the  premise  that 
Congress  had  not  the  power  to  pass  legislation  in  accordance 
with  the  President's  recommendation  to  exclude  the  ob- 
jectionable publications  from  the  mails ;  such  a  law,  Calhoun 
thought,  "  would  be  a  violation  of  one  of  the  most  sacred 
provisions  of  the  Constitution,  and  subversive  of  reserved 
powers  essential  to  the  preservation  of  the  domestic  in- 
stitutions of  the  slaveholding  states,  and  with  them,  of  their 
peace  and  security."  This  would  be  closely  analogous  to  the 
Sedition  Act  which  made  it  a  crime  to  print  "any  false, 
scandalous  and  malicious  writing  or  writings,  against  the 
government  of  the  United  States,"  or  Congress,  or  the 
President,  "with  intent  to  defame  ...  or  to  bring  them 
.  .  .  into  contempt  or  disrepute  ...  or  to  incite  against 
them,  or  either  of  them,  the  hatred  of  the  good  people  of 
the  United  States."30 

But,  said  Calhoun,  postulating  the  unconstitutionally  of 
these  provisions,  "as  abridging  the  freedom  of  the  press, 
which  no  one  now  doubts,  it  will  not  be  difficult  to  show 
that  if,  instead  of  inflicting  punishment  for  publishing,  the 
act  had  inflicted  punishment  for  circulating  through  the 
mails  for  the  same  offence,  it  would  have  been  equally  un- 
constitutional ...  To  prohibit  circulation,  is  in  effect,  to 
prevent  publication  .  .  .  each  is  equally  an  abridgment  of 
the  freedom  of  the  press. 

"  The  prohibition  of  any  publication  on  the  ground  of  its 
being  immoral,  irreligious,  or  intended  to  excite  rebellion 
or  insurrection,  would  have  been  equally  unconstitutional ; 
and,  from  parity  of  reason,  the  suppression  of  their  circula- 
tion through  the  mail  would  be  no  less  so."31 

The  fallacy  of  this  is  evident.  So  far  as  the  Sedition  Act 
is  concerned,  there  are  two  grounds  upon  which  it  could  be 
attacked :  lack  of  congressional  power  to  punish  sedition, 
and  abridgment  of  the  freedom  of  the  press.  The  first 

30  i  Stat.  L.  596. 

31  Italics  are  mine. 


108  THE   POSTAL   POWER   OF   CONGRESS 

question,  for  present  purposes,  needs  no  discussion;32  but, 
as  for  the  second,  it  is  well  settled  that  punishment  for  sedi- 
tious, obscene,  defamatory  and  blasphemous  publications,  is 
not  in  violation  of  the  freedom  of  the  press.33  In  the 
United  States,  then,  there  is  no  constitutional  restriction 
which  will  compel  the  government  impotently  to  remain  the 
subject  of  attacks  upon  its  stability.  The  Act  of  1798  was 
very  broad  and  objectionable  on  this  ground,  but  the  pro- 
hibition of  seditious  utterances  urging  the  use  of  force  or 
unlawful  means  to  overthrow  the  government  or  falsely 
defamatory  of  federal  officers  would  not  infringe  any  provi- 
sion of  the  bill  of  rights.84 

32  The  subject  has  been  given  very  adequate  treatment  by  Mr. 
Henry  Wolfe  Bilke  in  his  paper  on  "  The  Jurisdiction  of  the  United 
States  over  Seditious  Libel,"  50  American  Law  Register,   i.     Mr. 
Bilke  says :  "  The  power  to  punish,   for  seditious  libel,  it  is  sub- 
mitted, results  to  the  United  States,  first  from  its  inherent  right  to 
adopt  such  measures  as  are  necessary  for  its  self-preservation,  and 
second,  from  its  right  to  adopt  such  measures  as  are  necessary  to 
secure  its  officers  in  the  due  administration  of  their  duties."    While 
it  is  the  better  view  that  Congress  has  no  powers  inherent  in  sover- 
eignty  (see  i  Willoughby  on  the  Constitution,  66),  the  Supreme 
Court   apparently   rested    its    decisions    in    the    Chinese    Exclusion 
Cases  [sub.  nom.  Chae  Chan  Ping  v.  U.  S.,  130  U.  S.  581    (1888), 
and  especially  Fong  Yue  Ting  v.  U.  S.,  149  U.  S.  698  (1892)]  on 
a  contrary  theory.    These  cases  furnish  the  authority  for  the  first 
conclusion  just  quoted,  while  the  case  of  In  Re  Neagle,  135  U.  S. 

1  (1889),  is  made  the  basis  for  the  second  reason  why  it  is  within 
the  power  of  the  United  States  to  punish  sedition.    At  the  time  of 
the  passage  of  the  act,  it  had  not  yet  been  decided  that  the  federal 
courts  possessed  no  common   law  criminal  jurisdiction.    U.   S.  v. 
Hudson  &  Goodwin,  7  Cranch  32   (1812).    The  Federalists  main- 
tained that  such  jurisdiction  did  exist,  and  that  since  sedition  was  a 
common  law  offence,  Congress  could  make  it  statutory  and  thus  aid 
the  courts  in  its  punishment. 

33  Patterson,  Liberty  of  the  Press,  etc.,  p.  61.     Professor  Schofield 
is  of  the  opinion  (Freedom  of  the  Press  in  the  United  States,  p.  87) 
that  "  Liberty  of  the  Press  as  declared  in  the  First  Amendment  and 
the  English  common-law  crime  of  sedition  cannot  co-exist " ;  but 
certain  it  is,  that  without  impairing  the  freedom  of  the  press,  Con- 
gress may  punish  seditious  utterances  counseling  the  use  of  force 
or  unlawful  means,  and  falsely  defaming  public  officials. 

34  The  weight  of  authority  upholds  this  view.     See  Bilke,  op.  cit.; 

2  Willoughby  on  the  Constitution,  845;  Von  Hoist  (Constitutional 
History,  vol.  i,   142)    considers  the  law  "  unquestionably  unconsti- 
tutional" and  this  opinion  is  supported  by  2  Tucker  on  the  Consti- 
tution, 669.     Story  (Commentaries,  vol.  iii,  744)  declines  to  commit 
himself,  but  intimates  that  the  law  was  valid.    The  chief  objection, 
as  I  have  said,  was  to  the  very  broad  terms  of  the  act. 


LIMITATIONS   ON   THE   POSTAL   POWER  IOQ 

But  legislation  of  the  character  urged  by  Jackson  was  not  on 
all  fours  with  the  Sedition  Act,  for  by  that  act  the  govern- 
ment was  punishing  publications  which  it  deemed  inimical 
to  its  own  safety.  The  incendiary  matter,  however,  con- 
cerned the  states  and  only  a  portion  of  them ;  the  power  of 
Congress  to  prohibit  it,  therefore,  was  doubtful,  unless  the 
evil  reached  such  proportions  that  the  menace  to  the  states 
was  a  menace  to  the  federal  government.  To  Calhoun  it 
seemed  also  that  the  prohibition  of  circulation  through  the 
mails  was  tantamount  to  a  prohibition  of  publication. 

The  right  "  to  determine  what  papers  are  incendiary,"  the 
report  argued,  and  as  such  to  "prohibit  their  circulation 
through  the  mail,  necessarily  involves  the  right  to  determine 
what  are  not  incendiary  and  to  enforce  their  circulation"; 
both  were  matters  of  state  prerogative.  And,  if  "con- 
sequently the  right  to  protect  her  internal  peace  and  security 
belongs  to  a  state,  the  general  government  is  bound  to  re- 
spect the  measures  adopted  by  her  for  that  purpose,  and  to 
cooperate  in  their  execution,  as  far  as  its  delegated  powers 
may  admit,  or  the  measure  may  require.  Thus,  in  the 
present  case,  the  slaveholding  states  having  the  unquestion- 
able right  to  pass  all  such  laws  as  may  be  necessary  to 
maintain  the  existing  relation  between  master  and  slave  in 
those  states,  their  right,  of  course,  to  prohibit  the  circulation 
of  any  publication  or  intercourse  calculated  to  disturb  or 
destroy  that  relation  is  incontrovertible."  The  general  gov- 
ernment is  bound,  "  in  conformity  to  the  principle  estab- 
lished, to  respect  the  laws  of  the  state  in  their  exercise,  and 
so  to  modify  its  act  as  not  only  not  to  violate  those  of  the 
states",  but  as  far  as  practicable,  to  cooperate  in  their 
execution." 

Simultaneously  with  the  presentation  of  this  report, 
Calhoun  introduced  a  bill,  framed  in  accordance  with  his 
views,  making  it  unlawful  for  any  postmaster  to  receive  and 
put  in  the  mail  any  publication  addressed  to  a  jurisdiction 
where  its  circulation  was  forbidden.  It  was  made  a  crime 
to  deliver  such  prohibited  mail  to  any  person  not  "duly 


I  IO  THE   POSTAL   POWER  OF   CONGRESS 

authorized  ...  to  receive  the  same"  by  the  local  authori- 
ties, and  there  was  a  further  provision  that  the  laws  of  the 
United  States  should  not  be  allowed  to  protect  any  post- 
master accused  of  violating  local  regulations.  By  this 
means,  Calhoun  thought  to  preserve  the  liberty  of  the  press 

I  and  hand  the  matter  over  to  the  states  for  their  settlement.35 
The  constitutional  questions  involved  in  the  report  and 
law  proposed  gave  rise  to  a  debate  of  such  importance  that 
it  has  several  times  been  referred  to  by  the  Supreme  Court 
of  the  United  States  in  passing  on  partially  analogous 
matters.36  Many  different  views  were  advanced  as  to  the 
)  correct  interpretation  of  the  postal  grant  which  at  this  time 
had  received  practically  no  consideration  by  the  judiciary. 
Webster,  for  example,  contended  that  the  proposed  law 
"conflicted  with  that  provision  of  the  Constitution  which 
prohibited  Congress  from  passing  any  law  to  abridge  the 
freedom  of  speech  or  of  the  press.  What  was  the  liberty 
of  the  press  ?  "  he  asked.  "  It  was  the  liberty  of  printing  as 
well  as  the  liberty  of  publishing,  in  all  the  ordinary  modes 
of  publication ;  and  was  not  the  circulation  of  papers  through 
the  mails  an  ordinary  mode  of  publication?  .  .  .  Congress 
might,  under  this  example,  be  called  upon  to  pass  laws  to 
suppress  the  circulation  of  political,  religious,  or  any  other 
description  of  publications  which  produced  excitement  in 
the  states."  Finally,  he  argued,  "  Congress  had  not  the 
power,  drawn  from  the  character  of  the  paper,  to  decide 
whether  it  should  be  carried  in  the  mail  or  not;  for  such 
decision  would  be  a  direct  abridgment  of  the  freedom  of  the 

\  press."37 

Clay  argued  to  the  same  effect,  considering  the  bill  un- 
called for  by  public  sentiment,  unconstitutional,  and  contain- 

.  ing  "a  principle  of  a  most  dangerous  and  alarming  char- 
acter."38    Buchanan's  views,  however,  were  different.     "  It 

35  12  Debates  of  Congress,  383.     Postmasters  were  further  enjoined 
"  to  cooperate,  as  far  as  may  be,  to  prevent  the  circulation  of  any 
pamphlet "  where  it  was  forbidden  by  local  laws. 

36  Ex  parte  Jackson  and  Lewis  Publishing  Co.  v.  Morgan. 
37 12  Debates  of  Congress,  1721. 

3»  Ibid.,  1728. 


LIMITATIONS   ON   THE   POSTAL   POWER  III 

was  one  thing  [he  said]  not  to  restrain  or  punish  publica- 
tions ;  it  was  another  and  an  entirely  different  thing  to  carry 
and  circulate  them  after  they  have  been  published.  The  one 
is  merely  passive,  the  other  is  active.  It  was  one  thing  to 
leave  our  citizens  entirely  free  to  print  and  publish  and 
circulate  as  they  pleased;  and  it  was  another  thing  to  call 
upon  us  to  aid  in  their  circulation.  From  the  prohibition 
to  make  any  law  'abridging  the  freedom  of  speech  or  of 
the  press,'  it  could  never  be  inferred  that  we  must  provide 
by  law  for  the  circulation  through  the  post  office  of  every- 
thing which  the  press  might  publish."39 

Senator  Davis  of  Massachusetts  charged,  quite  properly, 
it  seems  to  me,  that  the  report  and  bill  were  in  conflict,  since 
"  the  report  sets  forth  that  Congress  has  no  power  to  make  a 
law  to  restrain  the  circulation  of  incendiary  papers  through 
the  mail,  because  the  post  masters  have  no  right  to  determine 
what  is  and  what  is  not  incendiary;  and  because  to  shut 
papers  out  of  the  mail,  would  be  an  invasion  of  the  liberty 
of  the  press."  But  the  bill  would  have  the  United  States 
adopt  and  enforce  state  laws  prohibiting  the  circulation  of 
incendiary  papers,  "having  constitutional  power  so  to  do 
and  being  bound  in  duty  so  to  do."40  Another  difficulty,  as 
Davis  went  on  to  say,  was  "  that  incendiary  matter  is  any- 
thing unfavorable  to  slavery.  The  general  principle  urged 
by  the  Senator  from  Carolina  is,  that  where  the  states  have 
power  to  legislate,  the  United  States  is  bound  to  carry  into , 
execution  their  laws.  They  have  the  power  to  prohibit  the;' 
circulation  of  incendiary  matter,  and  therefore  Congress 
ought  to  aid  that  power." 

But  to  this  "there  are  insurmountable  difficulties.     How 
and  by  whom,  is  this  law  to  be  executed?     Who  is  to  de- 


39  12  Debates  of  Congress,  1724. 

40  Ibid.,  1149.     As  a  matter  of  fact  practically  all  of  the  state  con- 
stitutions  contained   provisions   guaranteeing  the    freedom    of   the 
press.    There   was,   however,    liability   for   abuse   in    Maine,    Con- 
necticut, New  York,  Pennsylvania,  Delaware,  Kentucky,  Tennessee, 
Indiana,   Illinois,   Ohio,    Mississippi,   Alabama   and   Missouri.    The 
other  constitutions  gave  unrestricted  freedom,  subject,  of  course,  to 
the  common  law  exceptions.     See  Niles'  Register,  vol.  xlix,  236. 


112  THE   POSTAL   POWER   OF   CONGRESS 

termine,  and  in  what  manner,  whether  the  Constitution  of 
Massachusetts,  which  declares  that  all  men  are  born  free 
and  equal,  or  the  Declaration  of  Independence  .  .  .  touch 
the  subject  of  slavery  or  are  incendiary?  Whoever  holds 
this  power  may  shut  up  the  great  channels  of  inter-com- 
munication ;  may  obstruct  the  great  avenues  through  which 
intelligence  is  disseminated."41 

The  use  of  the  mail  was  declared  by  Mr.  Morris  of  Ohio 
to  be  "a  reserved  right,  with  which  no  law  ought  to  inter- 
fere, and  not  a  governmental  machine  which  Congress  can 
withdraw  at  pleasure  or  render  nugatory  by  the  acts  of  its 
officers."  Mr.  King  raised  the  question  as  to  federal  en- 
forcement of  circulation  in  the  states  against  their  will.  It 
would  depend,  he  said,  on  the  character  of  the  paper.  "  If 
it  were  a  commercial  letter  ...  or  any  other  paper  con- 
nected with  the  granted  powers  and  social  relations,  as 
established  by  the  Constitution,  and  not  inconsistent  with 
the  reserved  rights  of  the  states,  in  that  case  its  circulation 
might  be  enforced.  If  of  a  different  character  it  could  not 
be  enforced,  and  the  states  whose  acknowledged  rights  might 
be  affected,  could  interfere  and  arrest  the  circulation."42 

This  debate,  although  exhaustive,  was  inconclusive,  and 
some  of  the  opinions  expressed  seem,  in  the  light  of  present 
day  construction  of  the  postal  clause,  almost  absurd.  Con- 
siderably changed,  Calhoun's  bill  came  up  for  a  vote  on  June 
8,  1836,  and  failed  of  passage.  In  its  amended  form,  the 
bill  no  longer  required  that  postmasters  know  the  laws  of  the 
places  to  which  the  mail  they  received  was  directed.  Under 
a  penalty  of  being  removed  from  office,  they  were  forbidden 
to  deliver  publications,  the  circulation  of  which  was  pro- 
hibited by  local  laws,  and  in  the  event  that  state  regulations 
were  not  regarded,  it  was  provided  that  "  nothing  in  the  acts 

41 12  Debates  of  Congress,  1103. 

42  Ibid.,  1124.  The  House  Committee  on  Postoffices  and  Post- 
roads  had  the  President's  message  under  consideration  and  "came 
to  the  conclusion  by  a  vote  of  6  to  3,  in  favor  of  the  constitutionality 
and  expediency  of  legislation,  to  restrain  the  mail  circulation  of 
these  publications."  The  majority,  however,  was  unable  to  agree 
upon  a  bill.  Ibid.,  2944. 


LIMITATIONS   ON   THE   POSTAL   POWER  113 

of  Congress  shall  be  construed  "  so  as  to  furnish  immunity 
from  prosecution.*3 

There  is  much  to  be  said  in  favor  of  this  bill  as  amended. 
To  make  their  postal  agents  amenable  to  local  laws  as  re- 
gards the  distribution  of  certain  matter  is  surely  within  the 
constitutional  power  of  Congress,  and  the  aim  should  con- 
stantly be  for  the  federal  government  to  legislate  so  that 
national  and  local  statutes  will  be  harmonized.  "  It  must  be 
kept  in  mind,"  the  Supreme  Court  has  said,  "that  we  are 
one  people  and  that  the  powers  reserved  to  the  states  and 
those  conferred  on  the  nation,  are  adapted  to  be  exercised, 
whether  independently  or  concurrently,  to  promote  the  gen- 
eral welfare,  material  and  moral."44  In  several  instances 
this  dictum  of  the  Court  has  been  effectuated. 

The  Judiciary  Act  of  I78945  adopted  "the  laws  of  the 
several  states  "  as  "  rules  of  decision  in  trials  at  common  law 
in  courts  of  the  United  States  in  cases  where  they  apply."46 
Quarantine  and  pilotage  regulations  have  been  freely  made 
by  the  states.47  During  Mr.  Jefferson's  administration  (and 
this  was  a  precedent  relied  upon  by  Calhoun),  Congress 
passed  a  law  forbidding  the  transportation  of  free  negroes 
from  one  state  into  any  other  where  by  local  laws  they  were 
not  permitted  to  reside.48  The  constitutionality  of  this  act  \ 
was  sustained  by  Chief  Justice  Marshall.49  So  also,  the 
congressional  act  providing  for  publicity  of  campaign  ex- 
penditures forbids  any  candidate  for  Representative  in  Con- 

43  12  Debates  of  Congress,  1721.  The  analogy  is  noticeable  between 
Calhoun[s  bill  and  the  Webb-Kenyon  Act.  The  purpose  of  each  was 
substantially  the  same, — to  make  state  laws  more  effective.  The 
latter  simply  excludes  from  interstate  commerce  intoxicating  liquor 
intended  to  be  used  in  violation  of  the  law  of  destination,  providing 
no  penalties,  and  merely  taking  from  the  offender,  when  the  state 
attempts  to  punish,  his  hitherto  valid  defense  that  the  local  author- 
ity was  interfering  with  interstate  commerce.  See  my  papers,  I 
California  Law  Review,  499  and  28  Harvard  Law  Review,  225. 

44Hoke  v.  U.  S.,  227  U.  S.  308  (1913). 

«  i  Stat.  L.  73. 

46  Golden  v.  Prince,  10  Fed.  Cas.  542  (1814). 

47  Cooley  v.  Port  Wardens,  12  How.  299  (1851). 

48  Act  of  Feb.  28,  1803 ;  2  Stat.  L.  295. 

49  Brig  Wilson,  I  Brockenbo rough,  423  (1820). 
8 


114  THE   POSTAL   POWER   OF   CONGRESS 

gress  or  for  Senator  of  the  United  States  to  "  use  money  in 
violation  of  the  laws  of  the  state  in  which  he  resides/'50  and 
Congress  has  adopted  and  enforced,  as  its  own,  state  laws 
governing  elections  to  the  House.51  Finally,  in  spite  of  the 
constitutional  requirement  that  bankruptcy  laws  must  be 
uniform,  Congress  has  permitted  great  variance  among  the 
several  states,  their  regulations  being  enforced  by  the  federal 
courts.  To  this  there  is  no  constitutional  objection.52 

There  is,  thus,  a  considerable  body  of  analogous  authority 
in  support  of  Calhoun's  bill  as  amended.  In  its  first  form, 
the  law  he  proposed  was  open  to  objection  in  that  it  required 
deputy  postmasters  to  know  the  regulations  of  jurisdictions 
other  than  their  own,  and  its  effect  was  to  exclude  from  the 
mails  incendiary  matter  which  the  receiving  postmaster 
thought  would  be  considered  objectionable  at  its  destina- 
tion. Under  the  amended  act,  however,  there  would  be 
uniformity,  since  everything  would  be  transmitted,  the  re- 
striction being  only  as  to  circulation  within  the  states.  In 
administering  a  great  governmental  establishment,  it  should 
be  the  aim  of  Congress  not  to  interfere  with  the  exercise  by 
the  states  of  powers  reserved  to  them. 

But  Calhoun's  argument  that  the  denial  of  postal  facili- 
ties was  tantamount  to  a  denial  of  the  right  of  publication, 
is  not  well  founded,  as  the  Supreme  Court  of  the  United 
States  has  been  at  pains  to  point  out ;  nevertheless  it  is  true 
that,  in  some  measure  at  least,  the  First  Amendment  insures 
a  use  of  the  postoffice.63  Whether,  if  Congress  had  passed 
legislation  excluding  the  incendiary  literature  from  the  mails, 
absolutely,  the  constitutional  guarantee  of  a  free  press  would 
have  been  violated,  depends  upon  the  character  of  the  pub- 
lications. If  they  were  of  such  a  seditious  tendency  that 
their  menace  of  established  institutions  in  the  states  was  a 
menace  to  the  federal  government,  if  they  fomented  dis- 

50  Act  of  August  19,  1911 ;  37  Stat.  L.  25. 
61  Ex  parte  Siebold,  100  U.  S.  371  (1879). 

52  Hanover  Bank  v.  Moyses,  186  U.  S.  181   (1902). 

53  Ex  parte  Jackson,  96  U.  S.  727  (1878)  ;  see  the  quotation  from 
this  case,  below,  pp.  115-116. 


LIMITATIONS    ON    THE    POSTAL   POWER  115 

order  and  proposed  to  abolish  slavery  otherwise  than  by 
law,  their  utterance  could  have  been  prohibited,  and  the 
denial  of  postal  facilities  would  have  been  constitutional. 
Or,  if  the  objectionable  publications  did  not  affect  the  gen- 
eral government,  but  incited  to  arson,  murder,  etc.,  and  were 
not  simply  political  appeals,  they  could  have  been  excluded, 
and  there  would  have  been  no  infringement  of  the  freedom 
of  the  press.  But  the  power  of  Congress  did  not  extend  to 
the  denunciation  of  anything  unfavorable  to  slavery ;  free- 
dom of  circulation  could  not  be  denied  publications  unless 
they  fell  within  the  limits  stated  above. 

The  views  expressed  in  this  debate  on  Calhoun's  bill  were 
urged  before  the  Supreme  Court  of  the  United  States  with 
considerable  force  when  it  was  called  upon  to  determine  the 
constitutionality  of  the  act  excluding  lottery  tickets  from  the 
mails.  The  prevailing  opinion  in  the  senatorial  debate  had 
been,  as  we  have  seen,  that  Congress  did  not  possess  the 
power  to  prohibit  the  carriage  in  the  mails  of  the  incendiary 
publications,  and  to  this  citation  of  authority  the  Supreme 
Court  replied : 

"  Great  reliance  is  placed  by  the  petitioner  upon  these 
views,  coming  as  they  did  in  many  instances,  from  men 
alike  distinguished  as  jurists  and  statesmen.  But  it  is  evi- 
dent that  they  were  founded  upon  the  assumption  that  it  is 
competent  for  Congress  to  prohibit  the  transportation  of 
newspapers  and  pamphlets  over  postal  routes  in  any  other 
way  than  by  mail;  and  of  course,  it  would  follow,  that  if 
with  such  a  prohibition,  the  transportation  in  the  mail  could 
also  be  forbidden,  the  circulation  of  the  documents  would 
be  destroyed  and  a  fatal  blow  given  to  the  freedom  of  the 
press.  But  we  do  not  think  that  Congress  possesses  the 
power  to  prevent  the  transportation  in  other  ways,  as  mer- 
chandise, of  matter  which  it  excludes  from  the  mails.  To 
give  efficiency  to  its  regulations  and  prevent  rival  postal 
systems,  it  may,  perhaps,  prohibit  the  carriage  by  others  for 
hire,  over  postal  routes,  of  articles  which  legitimately  con- 
stitute mail  matter,  in  the  sense  in  which  those  terms  were 


Il6  THE   POSTAL   POWER  OF   CONGRESS 

used  when  the  Constitution  was  adopted, — consisting  of 
letters,  and  of  newspapers  and  pamphlets,  when  not  sent 
as  merchandise, — but  further  than  this  its  power  of  prohibi- 
tion cannot  extend." 

And  in  making  a  bare  denial  of  the  charge  that  the  law 
abridged  the  liberty  of  the  press,  the  Court  went  on  to  say : 

"  In  excluding  various  articles  from  the  mail,  the  object 
of  Congress  has  not  been  to  interfere  with  the  freedom  of 
the  press,  or  with  any  other  rights  of  the  people,  but  to 
refuse  its  facilities  for  the  distribution  of  matter  deemed 
injurious  to  the  public  morals.  .  .  . 

"  Nor  can  any  regulations  be  enforced  against  the  trans- 
portation of  printed  matter  in  the  mail,  which  is  open  to 
examination,  so  as  to  interfere  in  any  manner  with  the 
freedom  of  the  press.  Liberty  of  circulating  is  as  essential 
to  that  freedom  as  liberty  of  publishing;  indeed,  without  the 
circulation,  the  publication  would  be  of  little  value.  If, 
therefore,  printed  matter  be  excluded  from  the  mails,  its 
transportation  in  any  other  way  cannot  be  forbidden  by 
Congress."5* 

In  1890  Congress  extended  the  inhibition  to  "  any  news- 
paper, circular,  pamphlet,  or  publication  of  any  kind,  con* 
taining  any  advertisement  of  any  lottery,"  and  again  the 
Supreme  Court  held  that  there  had  been  no  impairment  of 
the  freedom  of  the  press.  The  Court  said : 

"We  cannot  regard  the  right  to  operate  a  lottery  as  a 
fundamental  right  infringed  by  the  legislation  in  question; 
nor  are  we  able  to  see  that  Congress  can  be  held,  in  its  enact- 
ment, to  have  abridged  the  freedom  of  the  press.  The 
circulation  of  newspapers  is  not  prohibited,  but  the  govern- 
ment declines  itself  to  become  an  agent  in  the  circulation  of 
printed  matter  which  it  regards  as  injurious  to  the  people. 
The  freedom  of  communication  is  not  abridged  within  the 
intent  and  meaning  of  the  constitutional  provision  unless 
_  Congress  is  absolutely  destitute  of  any  discretion  as  to  what 
shall,  or  shall  not  be  carried  in  the  mails,  and  compelled 

54  Ex  parte  Jackson,  96  U.  S.  733  (1878)  ;  italics  are  mine. 


LIMITATIONS   ON   THE   POSTAL   POWER  I  I  7 

arbitrarily  to  assist  in  the  dissemination  of  matter  con- 
demned by  its  judgment,  through  the  governmental  agencies 
which  it  controls.  That  power  may  be  abused  furnishes 
no  ground  for  a  denial  of  its  existence,  if  government  is  to-- 
be maintained  at  all."55 

It  should  be  remarked  that  in  these  cases  the  reasoning 
was  largely  based  on  the  assumption  that  prohibiting  cir- 
culation through  the  mails  was  not  equivalent  to  prohibiting 
publication,  and  Congress  could  thus  deny  postal  facilities 
to  matter  which  it  deemed  injurious  to  the  people,  without 
interfering  with  the  liberty  of  the  press,  since  transportation 
between  the  states,  outside  of  the  mails,  would  still  be  pos- 
sible. But  it  would  seem  that  this  doctrine  was  repudiated, 
inferentially  at  least,  when  the  Supreme  Court  upheld  the 
law  excluding  lottery  tickets  from  interstate  commerce,56 
and  it  would,  therefore,  it  seems  to  me,  have  been  far  better 
if  the  Court,  in  the  first  instance,  had  adopted  other  reason- 
ing. It  could  have  held  that  the  liberty  of  the  press  suffered 
abridgment  by  a  denial  of  postal  facilities,  but  that  lottery 
advertisements,  by  common  opinion,  had  become  as  ob- 
jectionable as  immoral  writings,  and  that  the  latter  class, — 
an  exception  to  the  common  law  guarantee, — could,  by 
reason  of  a  developing  moral  sense,  be  made  to  include  the 
former.  Or  the  Court  could  have  announced  as  a  rule  what 
is  probably  true,  independent  of  judicial  acceptance,  that 
the  freedom  of  the  press  does  not  include  freedom  of  ad- 
vertisement. Or,  to  advert  to  the  view  of  Professor  Scho- 
field,  if  the  First  Amendment  protects  only  publications 
which  have  an  educational  value  on  matters  of  national 
public  concern,  lottery  advertisements  do  not  come  within 
this  class;  nor  do  obscene  writings.57  Any  one  of  these 
theories  would  have  permitted  the  Supreme  Court  to  render 

55  In  re  Rapier,  143  U.  S.  no  (1892)  ;  26  Stat  L.  465. 

56  Champion  v.  Ames,  188  U.  S.  321   (1902).     See  Goodnow,  So- 
cial Reform  and  the  Constitution,  p.  83,  and  2  Willoughby  on  the 
Constitution,  741.    A  flatfooted  declaration  that  the  liberty  of  the 
press  is  subject  to  police  regulations  concerning  what  is  to  be  carried 
in  the  mails,  would,  I  think,  have  been  justifiable.     But  the  holding 
of  the  Jackson  case  is  different. 

57  Schofield,  Freedom  of  the  Press  in  the  United  States,  p.  82. 


I  I  8  THE   POSTAL   POWER   OF   CONGRESS 

a  logical  decision,  without  putting  forth  a  dictum  that  Con- 
gress could  not  prevent  the  transportation  in  other  ways  of 
matter  excluded  from  the  mails,  for  this  would  be  a  check 
on  circulation  which  would  be  a  check  on  publication,  and 
then  being  forced  to  take  a  contrary  position  in  order  to 
declare  constitutional  a  statute  which  exercised  the  very 
power  that  the  Court  had  doubted.  Calhoun's  contention, 
therefore,  seems  to  be  the  more  logical.  As  it  was,  the 
ratio  decidendi  of  the  Court  in  the  Jackson  and  Rapier  cases 
would  have  been  impossible  had  the  restraint  been  against 
writings  of  an  admittedly  innocuous  character,  against  poli- 
tical opinions,  for  example,  or  against  matters  not  so  uni- 
versally condemned  under  the  police  power.  And,  to  repeat, 
the  Court  was  forced  to  deny  what,  I  think,  is  undoubtedly 
the  better  doctrine, — that  the  liberty  of  the  press  may  be 
abridged  by  restrictions  on  the  use  of  the  mails, — a  doctrine 
that  will  probably  be  returned  to  if  Congress  legislates  on 
publications  that  are  unobjectionable. 

The  question  of  anarchistic  publications  and  the  postoffice 
was  raised  in  March,  1908,  when  President  Roosevelt  wrote 
to  Attorney  General  Bonaparte: 

"  By  my  direction  the  Postmaster  General  is  to  exclude  La 
Questione  Sociale,  of  Paterson,  N.  J.,  from  the  mails,  and 
it  will  not  be  admitted  to  the  mails,  unless  by  order  of  the 
court,  or  unless  you  advise  me  that  it  must  be  admitted."58 

In  reply  to  the  President's  letter,  Secretary  Bonaparte 
wrote : 

"  I  am  obliged  to  report  that  I  can  find  no  express  provi- 
sion of  law  directing  the  exclusion  of  such  matter  from  the 

586oth  Cong.,  ist  Sess.,  Senate  Doc.  No.  426.  The  paper  in  ques- 
tion was  undoubtedly  anarchistic  in  its  tendencies  and  certain  of  its 
sentiments  were  seditious  libels.  One  editorial,  for  instance,  con- 
tained the  following : 

"  Dynamite  will  help  us  to  win.  Two  or  three  of  us  can  deny  a 
regiment  of  soldiers  without  fear.  .  .  .  Show  no  sympathy  for  any 
soldiers,  even  if  they  be  sons  of  the  people.  As  soon  as  we  get 
hold  of  the  police  station,  it  is  our  victory.  The  thing  is  to  kill  the 
entire  force.  .  .  .  We  must  get  into  the  armory,  and  in  case  we  can- 
not, then  we  will  blow  it  down  with  dynamite.  .  .  .  We  must  set 
fire  to  three  or  four  buildings  in  different  locations  .  .  .  and  then 
start  a  fire  in  the  center  of  the  city." 


LIMITATIONS   ON   THE   POSTAL   POWER  119 

mails,  or  rendering  its  deposit  in  the  mails  an  offense  against 
the  United  States  " ;  but  "  I  have  the  honor  to  advise  you 
that  it  is  clearly  and  fully  within  the  power  of  Congress  to 
exclude  from  the  mails  publications"  such  as  La  Questione 
Sociale,  "  and  to  make  the  use,  or  attempted  use,  of  the  mails 
for  the  transmission  of  such  writings  a  crime  against  the 
United  States." 

What  Congress  thought  of  anarchy,  Mr.  Bonaparte  said, 
was  shown  by  the  Act  of  March  7,  lo/)/,59  excluding  and 
providing  for  the  deportation  of  anarchists,  and  the  At- 
torney General  made  this  implied  expression  of  legislative 
authority  (even  though  in  1903  Congress  had  expressly  re- 
fused to  pass  a  law  directed  against  anarchistic  publica- 
tions) a  sufficient  basis  to  legalize  the  action  of  the  Presi- 
dent and  exclude  newspapers  which  advocated  the  opinions 
quoted.  The  Attorney  General's  opinion  concluded : 

"  In  the  absence  of  any  express  provision  of  law  or  bind- 
ing adjudication  on  this  precise  point,  ...  I  advise  you 
that,  in  my  opinion,  the  Postmaster  General  will  be  justified 
in  excluding  from  the  mails  any  issue  of  any  periodical, 
otherwise  entitled  to  the  privileges  of  second  class  mail 
matter,  which  shall  contain  any  article  constituting  a  sedi- 
tious libel  and  counselling  such  crimes  as  murder,  arson,  riot, 
and  treason." 

Such  action,  the  opinion  said,  would  be  perfectly  safe, 
since  "  it  is  well  settled  that  at  common  law  the  owner  of  a 
libelous  picture  or  placard  or  document  of  any  kind  is 
entitled  to  no  damages  for  its  destruction  in  so  far  at  least 
as  its  value  may  depend  on  its  unlawful  significance." 
Hence  the  federal  statutes  which  provide  punishment  for 
postmasters  who  may  "unlawfully  detain"  or  "improperly 
detain  "  mailable  matter,  would  not  operate.60 

58  34  Stat  L.  908. 

60  Rev.  Stat.  Sees.  3890,  5471.  But  is  this  illustration  on  all  fours 
with  the  question  of  illegally  excluding  La  Questione  Sociale?  Mr. 
Bonaparte  mentions  the  fact  that  while  the  article  "constitutes  a 
seditious  libel  and  its  publication,  in  my  opinion,  is  undoubtedly  a 
crime  at  common  law,"  it  is  not  an  "  offense  against  the  United  States 
in  the  absence  of  some  federal  statute  making  it  one."  U.  S.  v. 
Hudson  &  Goodwin,  7  Cranch  32  (1812). 


I2O  THE   POSTAL   POWER  OF   CONGRESS 

As  a  matter  of  fact,  the  newspaper  was  excluded  for 
reasons  other  than  its  contents,  but  President  Roosevelt 
transmitted  the  Attorney  General's  opinion  to  Congress  and 
in  a  special  message  said : 

"  Under  this  opinion  I  hold  that  the  existing  statutes  give 
the  President  power  to  prohibit  the  Postmaster  General 
from  being  used  as  an  instrument  in  the  commission  of 
crime;  that  is,  to  prohibit  the  use  of  the  mails  for  the 
advocacy  of  murder,  arson,  and  treason;  and  I  shall  act 
upon  such  construction.  Unquestionably,  however,  there 
should  be  further  legislation  by  Congress  in  this  matter. 
When  compared  with  the  suppression  of  anarchy,  every 
other  question  sinks  into  insignificance."  Congress  has 
since  acted  by  declaring  that  the  term  "  indecent "  in  the 
section  against  obscene  writings,  should  include  "  matter  of 
a  character  tending  to  incite  arson,  murder  or  assassina- 
tion."61 

The  Attorney  General  in  his  opinion,  it  may  be  remarked, 
did  not  mention  the  freedom  of  the  press,  and  this  ques- 
tion was  not  involved.  From  what  has  already  been  said,  it 
follows  that  there  is  no  question  as  to  the  competency  of 
Congress  to  pass  legislation  designed  to  deny  the  mails  to 
anarchistic  publications  if  they  incite  to  crime.  But  the 
Attorney  General's  argument  as  to  the  power  of  the  Presi- 
dent was  not  well  founded;  it  granted  to  an  administra- 
tive officer  arbitrary  discretion  based  on  no  explicit  or 
implied  legislative  authority,  and  sanctioned  the  exercise  of 
this  power  on  the  ground  that  the  one  injured  could  have 
no  legal  redress.  It  is,  however,  simply  a  question  of 
whether  the  exclusion  was  ultra  vires,  not  whether  it  was 
an  abridgment  of  the  freedom  of  the  press.62 

61  Act  of  March  4,  1911 ;  36  Stat.  L.  1339. 

62  In  U.  S.  ex  rel.  Turner  v.  Williams,  194  U.  S.  279  (1904),  the 
Supreme  Court  held  that  the  provisions  of  the  immigration  act  of 
1903  (32  Stat.  L.  1213)   for  the  exclusion  and  deportation  of  alien 
anarchists  did  not  violate  any  constitutional  limitations  and  that  the 
freedom  of  the  press  was  not  involved.     "  If  the  word  '  anarchists ' 
should  be  interpreted  as  including  aliens  whose  anarchistic  views 
are  professed  as  those  of  political  philosophers  innocent  of  evil 


LIMITATIONS   ON   THE   POSTAL   POWER  121 

The  latest  question  of  the  freedom  of  the  press  was  con- 
sidered by  the  Supreme  Court  in  1913  when  it  sustained 
the  so-called  "newspaper  publicity  law."  This  required 
publications  entered  as  second  class  matter  (with  a  few 
exceptions)  to  furnish  the  postoffice  department  with,  and 
publish  semi-annually,  a  sworn  statement  of  their  editors 
and  owners,  in  addition  to  marking  as  an  advertisement  any- 
thing for  the  publication  of  which,  compensation  is  received. 
Newspapers  were  also  required  to  give  information  as  to 
their  circulation  figures.63 

The  law  was  vigorously  assailed  as  being  ultra  vires,  as 
denying  due  process  of  law,  and  as  impairing  the  freedom 
of  the  press.  It  "  establishes,"  said  one  of  the  counsel,  "  a 
governmental  control  over  newspaper  publishers  and  dictates 
to  them  what  shall  or  shall  not  be  published  and  the  manner, 
form,  and  time  of  publishing.  In  other  words,  Congress  in 
plain  language  provided  that  matter  inherently  proper  and 
mailable  shall  be  unmailable,  not  on  account  of  any  inherent 
defect,  but  solely  because  the  publisher  may  refuse  or  neglect 
to  advise  the  public  of  certain  of  his  private  matters  as  to 
which  Congress  seems  to  desire  the  public  to  be  informed. 
This  is  not  regulation,  but  paternalism,  and  a  direct  and 
positive  abridgment  of  the  freedom  of  the  press."64 

The  Supreme  Court,  however,  by  a  narrow  line  of  reason- 
ing, sustained  the  statute,  the  opinion  showing  that  in  order 
to  receive  "  entry "  as  second  class  matter  and  get  the 
benefit  of  low  rates,  the  publication  must  answer  a  number 
of  questions  concerning  ownership,  editorial  supervision, 
circulation,  sample  copies,  and  advertising  discrimination. 
The  Court  considered  the  new  law  as  simply  laying  down 
additional  conditions,  compliance  with  which  would  enable 
the  publishers  to  continue  "  to  enjoy  great  privileges  and 

intent,  ...  in  the  light  of  previous  decisions,  the  act,  even  in  this 
aspect,  would  not  be  unconstitutional,  as  applicable  to  any  alien  who 
is  opposed  to  all  organized  government." 

63  37  Stat.  L.  553- 

64  Lewis  Publishing  Company  v.  Morgan,  229  U.  S.  288   (1913). 
Brief  of  Morris  and  Plante,  p.  41. 


122  THE   POSTAL   POWER   OF   CONGRESS 

advantages  at  the  public  expense."  The  Court  went  on 
to  say: 

"  This  being  true,  the  attack  on  the  provision  in  question 
as  a  violation  of  the  Constitution  because  infringing  the 
freedom  of  the  press  and  depriving  of  property  without 
due  process  of  law,  rests  only  upon  the  illegality  of  the 
conditions  which  the  provision  exacts  in  return  for  the 
right  to  enjoy  the  privileges  and  advantages  of  the  second 
class  mail  classification.  The  question,  therefore,  is  only 
this :  Are  the  conditions  which  were  exacted  incidental  to 
the  power  exerted  of  conferring  on  the  publishers  of  news- 
papers, periodicals,  etc.,  the  privileges  of  the  second  class 
classification,  or  are  they  so  beyond  the  scope  of  the  exer- 
cise of  that  power  as  to  cause  the  conditions  to  be  repugnant 
to  the  Constitution  ?  We  may  say  this  is  the  question,  since 
necessarily  if  the  power  exists  to  legislate  by  discriminating 
in  favor  of  the  publishers,  the  right  to  exercise  that  power 
carries  with  it  the  authority  to  do  those  things  which  are 
incidental  to  the  power  itself,  or  which  are  plainly  neces- 
sary to  make  effective  the  principal  authority  when 
exerted."65 

Whether  this  reasoning  seems  convincing  or  not,  it  must 
nevertheless  be  conceded  that  legislation  to  the  same  effect, 
not  based  upon  the  power  of  Congress  over  the  mails,  would 
be  unconstitutional,  and  that  in  this  case,  Congress  has 
been  permitted  to  do  by  indirection  what  it  has  not  the  power 
directly  to  accomplish.  The  step  is  a  short  one  to  requiring, 
for  a  continuance  of  the  low  second  class  rates,  that  news- 
papers print,  or  refrain  from  printing,  reading  matter  of  a 
specified  character.  The  decision,  however,  lends  no  sup- 
port to  the  belief  that  if  this  indirect  regulation  is  carried 
further,  or  if  there  is  a  real  interference  with  the  freedom 
of  the  press,  the  Supreme  Court  will  not  intervene. 

Such  are  the  incidents  in  which  the  liberty  of  the  press 
has  figured,  and  it  is  difficult  to  see  how  it  has  ever  been 

65  Lewis  Publishing  Company  v.  Morgan,  above.  Another  and 
more  significant  phase  of  this  important  case  is  treated  in  the  last 
chapter  of  this  study. 


LIMITATIONS   ON   THE   POSTAL   POWER  123 

abridged.  The  executive  order  of  President  Roosevelt  ex- 
cluding La  Questione  So  dale  from  the  mails  was  ultra  vires, 
but,  as  Attorney  General  Bonaparte  pointed  out,  the  in- 
jured parties  had  slight  chance  of  a  remedy  at  law.  Cer- 
tain it  is  that  the  paper  in  question  was  so  seditious  that 
under  a  state  statute  publication  could  have  been  stopped, 
and  that  an  Act  of  Congress,  forbidding  such  periodicals 
the  privilege  of  the  mails,  would  not  have  been  in  violation 
of  the  First  Amendment. 

The  decisions  of  the  Supreme  Court  which  have  been 
quoted  lead  to  no  conclusion  other  than  that  any  attempt 
on  the  part  of  Congress  to  place  a  previous  restraint  upon 
the  press,  or  even  to  deny  it  postal  facilities,  for  no  discern- 
ible reason,  would  receive  a  judicial  veto.  The  exclusion 
of  lottery  tickets,  obscene  matter,  and  other  writings  inimical 
to  the  public  morals,  has  been  clearly  within  the  power  of 
Congress,  and  legislation  forbidding  seditious  and  an- 
archistic publications  when  directed  against  the  federal 
government,  or  banning  them  from  the  mails,  would  be 
constitutional.  It  is  true  that  the  "newspaper  publicity 
law,"  strictly  speaking,  is  a  previous  restraint,  but  the 
Supreme  Court  considered  it  as  merely  laying  down  addi- 
tional and  reasonable  conditions,  compliance  with  which 
would  enable  periodical  publications  to  continue  to  enjoy 
great  and  exclusive  advantages  of  second  class  privileges, — a 
satisfactory,  if  not  conclusive  basis  for  the  decision;  as 
interpreted  by  the  Court,  the  act  promotes,  rather  than 
abridges,  the  liberty  of  the  press. 

Neither  reason  nor  precedent  justifies  the  view,  eloquently 
urged  by  counsel  in  this  case,  that  Congress  by  the  law 
exercises  "a  governmental  control  over  newspaper  pub- 
lishers and  dictates  to  them  what  shall  not  be  published,  and 
the  manner,  form,  and  time  of  publishing."  On  the  con- 
trary, that  great  "palladium  of  liberty," — the  freedom  of 
the  press, — seems  to  be  in  no  danger  of  demolition  through 
congressional  action. 

Unreasonable  Searches  and  Seizures. — As  with  the  free- 


124  THE   POSTAL   POWER   OF   CONGRESS 

dom  of  the  press,  the  Supreme  Court  of  the  United  States 
has  rarely  been  asked  to  restrain  the  postal  power  under  the 
provision  of  the  Fourth  Amendment  to  the  Constitution 
which  declares  that  "  the  right  of  the  people  to  be  secure  in 
their  persons,  houses,  papers,  and  effects  against  unreason- 
able searches  and  seizures,  shall  not  be  violated,  and  no 
warrants  shall  issue,  but  upon  probable  cause,  supported  by 
oath  or  affirmation,  and  particularly  describing  the  place  to 
be  searched,  and  the  persons  or  things  to  be  seized."68  The 
scope  of  this  limitation,  as  applied  to  the  mails,  has  been 
described  by  the  Supreme  Court  in  the  following  terms : 

"A  distinction  is  to  be  made  between  different  kinds  of 
mail  matter,  between  what  is  intended  to  be  kept  free  from 
inspection,  such  as  letters  and  sealed  packages,  subject  to 
letter  postage,  and  what  is  open  to  inspection.  .  .  .  Letters 
and  sealed  packages  of  this  kind  in  the  mail  are  to  be  as 
fully  guarded  from  examination  and  inspection,  except  as 
to  their  outward  form  and  weight,  as  if  they  were  retained 
by  the  parties  forwarding  them  in  their  own  domiciles.  The 
constitutional  guaranty  of  the  right  of  the  people  to  be 
secure  in  their  papers  against  unreasonable  searches  and 
seizures  extends  to  their  papers  thus  closed  against  in- 
spection, wherever  they  may  be.  Whilst  in  the  mail,  they 
can  only  be  opened  and  examined  under  like  warrant,  issued 
upon  similar  oath  or  affirmation,  particularly  in  describing 
the  thing  to  be  seized,  as  is  required  when  papers  are  sub- 
jected to  search  in  one's  own  household.  No  law  of  Con- 
gress can  place  in  the  hands  of  officials  connected  with  the 
postal  service  any  authority  to  invade  the  secrecy  of  letters 
and  such  sealed  packages ;  and  all  regulations  adopted  as  to 
mail  matter  of  this  kind  must  be  in  subordination  to  the 

66  For  an  historical  consideration  of  this  amendment,  see  Boyd  v. 
U.  S.,  116  U.  S.  616  (1886).  See  also  May,  Constitutional  History 
of  England,  vol.  ii,  p.  245  ff. ;  Cooley's  Blackstone,  Book  iv,  p.  290  ff. ; 
Annals  of  ist  Congress,  vol.  i,  pp.  434,  754,  and  Story,  Commen- 
taries, vol.  iii,  p.  748.  Discussions  of  the  general  scope  of  the  pro- 
vision are  to  be  found  in  2  Willoughby  on  the  Constitution,  828; 
Cooley,  Constitutional  Limitations  (7th  ed.),  p.  429,  and  Bruce, 
"  Arbitrary  Searches  and  Seizures  as  Applied  to  Modern  Industry." 
Green  Bag,  vol.  xviii,  p.  273. 


LIMITATIONS   ON   THE   POSTAL   POWER 

great  principle  embodied  in  the  Fourth  Amendment  of  the 
Constitution."67 

The  limitation  operates  chiefly  upon  administrative  offi- 
cials who  attempt  to  get  evidence  of  violations  of  the  law 
regarding  obscene  literature  and  fraudulent  matter  excluded 
from  the  mails.  In  regard  to  this  the  Court  said : 

"Whilst  regulations  excluding  matter  from  the  mails 
cannot  be  enforced  in  a  way  which  would  require  or  permit 
an  examination  into  letters,  or  sealed  packages  subject  to 
letter  postage,  without  warrant  issued  upon  oath  or  affirma- 
tion, in  the  search  for  prohibited  matter,  they  may  be  en- 
forced upon  competent  evidence  of  their  violation  obtained 
in  other  ways;  as  from  parties  receiving  the  letters  and 
packages,  or  from  agents  depositing  them  in  the  postoffices, 
or  others  cognizant  of  the  facts.  And  as  to  the  objection- 
able printed  matter  which  is  open  to  examination,  the  regu- 
lations may  be  enforced  in  a  similar  way,  by  the  imposi- 
tion of  penalties  for  their  violation  through  the  courts,  and, 
in  some  cases  by  the  direct  action  of  the  officers  of  the  postal 
service.  In  many  instances  those  officers  can  act  upon  their 
own  inspection,  and,  from  the  nature  of  the  case,  must  act 
without  other  proof ;  as  where  the  postage  is  not  prepaid,  or 
where  there  is  an  excess  of  weight  over  the  amount  pre- 
scribed, or  where  the  object  is  exposed,  and  shows  unmis- 
takably that  it  is  prohibited,  as  in  the  case  of  an  obscene 
picture  or  print.  In  such  cases,  no  difficulty  arises,  and  no 
principle  is  violated  in  excluding  the  prohibited  articles  and 
refusing  to  forward  them.  The  evidence  respecting  them  is 
seen  by  everyone  and  is  in  its  nature  conclusive."68 

This  view  of  the  law  has  been  acquiesced  in  by  Congress 
which  has  provided  that  nothing  in  the  acts  excluding  cer- 
tain matters  from  the  mails,  "shall  be  so  construed  as  to 
authorize  any  person  other  than  an  employee  of  the  Dead 
Letter  Office,  duly  authorized  thereto,  to  open  any  letter 
not  addressed  to  himself."69  The  regulations  promulgated 

67  Ex  parte  Jackson,  96  U.  S.  727  (1878). 

68  Ibid.    But  see  Hoover  v.  McChesney,  81  Fed.  Rep.  472  (1897). 

69  25  Stat.  L.  873. 


126  THE   POSTAL   POWER   OF   CONGRESS 

for  the  postoffice  department,  provide,  moreover,  that  neither 
postmasters,  inspectors,  employees,  nor  officers  of  the  law, 
"without  legal  warrant  therefor,  have  authority  to  open 
under  any  pretext  a  sealed  letter  while  in  the  mails,  not  even 
though  it  may  contain  improper  or  criminal  matter,  or 
furnish  evidence  for  the  conviction  of  offenders,"  and  out 
of  excess  of  caution,  it  is  further  added  that  "the  seal  of 
letters  or  packages  suspected  to  contain  unmailable  matter 
shall  not  be  broken  to  ascertain  that  fact."70  The  regu- 
lations provide  that  matter  manifestly  unmailable  shall  be 
withdrawn  and  sent  to  the  Division  of  Dead  Letters  with  a 
statement  of  the  facts  upon  which  such  action  was  taken; 
if  there  is  doubt  as  to  the  propriety  of  such  disposition,  the 
matter  shall  be  sent  to  the  Assistant  Attorney  General  for 
the  Postoffice  Department,  for  his  decision.71  Any  unlaw- 
ful opening  of  the  mail  by  a  postal  employee  is  dealt  with 
criminally.72  Special  regulations  govern  the  examination 
by  a  customs  officer  of  sealed  packages  supposed  to  be  duti- 
able, in  the  presence  of  the  addressee,  but  before  delivery 
to  him.73 

If,  then,  at  times,  administrative  zeal  may  lead  to  a  dis- 
regard of  these  regulations,  the  official  is  criminally  liable, 
and  the  one  whose  sealed  mail  is  searched,  has  a  right  of 
action  for  damages.  But  the  avowed  purpose  of  Congress 
and  of  the  postoffice  department  is  to  subordinate  efficiency 
in  the  detection  of  wrongdoing  to  the  right  of  the  people, 
under  the  Fourth  Amendment,  to  be  secure  in  their  sealed 
papers  when  they  are  in  the  hands  of  the  government  for 
transmission  through  the  mails.74 

70  Postal  Laws  and  Regulations  of  1913,  p.  300. 

71  Ibid.,  p.  313. 

72  35  Stat  L.  1125. 

73  Postal  Laws  and  Regulations  of  1913,  p.  372  ff. 

7*A  third  limitation  on  the  postal  power,  namely,  due  process  of 
law,  is  most  properly  treated  in  the  concluding  chapter  of  this  essay. 


CHAPTER   V 
THE  POWER  OF  THE  STATES  TO  INTERFERE  WITH  THE  MAILS 

In  the  disputed  zone  between  federal  authority  and  the 
reserved  rights  of  the  states,  interesting  and  often  acute 
problems  have,  of  course,  frequently  developed.  The  most 
important  of  these  have  probably  been  with  regard  to  the 
national  control  of  interstate  commerce  and  the  police  power 
of  the  states,  and  several  times  Congress  has  passed  legisla- 
tion designed  to  leave  certain  subjects  within  the  jurisdiction 
of  the  states  or  to  make  local  regulations  more  effective. 
In  Jefferson's  administration,  for  example,  Congress  passed 
a  law  prohibiting  the  transportation  of  free  negroes  from 
one  state  into  another  where  by  local  laws  they  were  not 
permitted  to  reside;1  the  sale  of  oleomargarine  has  been 
made  subject  to  local  regulations;2  Congress  has  forbidden 
the  transportation  of  game  killed  in  violation  of  state  laws,3 
and  has  twice  enacted  legislation  to  enable  the  states  more 
effectively  to  regulate  the  sale  of  intoxicating  liquors.4 
Such  action  has  been  necessary  since  congressional  silence 
has  been  interpreted  by  the  courts  as  meaning  that  com- 
merce between  the  states  shall  be  free,  just  as,  when  Con- 
gress has  acted  affirmatively,  state  laws  in  conflict  are 
thereby  suspended:  in  both  cases  the  supremacy  of  the 
federal  authority  is  unquestioned.  Nevertheless  local  juris- 
dictions have  been  permitted  to  exercise  a  slight  measure  of 
police  control.5 

It  would  seem  evident,  at  first  glance,  that,  inherently, 


1  Act  of  February  28,  1803,  2  Stat.  L.  295 ;  Brig  Wilson,  i  Brock- 
enborough  423  (1820). 
232  Stat.  L.  193;  U.  S.  v.  Green,  137  Fed.  Rep.  179  (1905). 

3  Criminal  Code,  sec.  242;  Rupert  v.  U.  S.,  181  Fed.  Rep.  87  (1910). 

4  Act  of  August  8,  1890,  26  Stat  L.  313   (Wilson  Act)  ;  Act  of 
March  i,  1913,  37  Stat  L.  699  (Webb-Kenyon  Act). 

5  See  2  Willoughby,  ch.  xlii,  and  cases  there  cited. 

127 


128  THE   POSTAL   POWER   OF   CONGRESS 

the  power  of  Congress  over  the  postal  system  is  even  more 
paramount  than  that  over  interstate  commerce,  but  there 
has  been  practically  no  judicial  determination  of  the  subject, 
and  as  there  are  only  a  few  incidents  in  which  a  conflict 
of  jurisdiction  has  taken  place,  conclusions  as  to  the  ex- 
clusiveness  of  the  federal  power  must  be  largely  speculative. 
.,  Some  aid,  it  is  true,  may  be  drawn  from  the  analogy  of 
interstate  commerce,  but  there  is  the  fundamental  differ- 
ence that  postal  facilities  are  established  and  conducted, 
while  trade  between  the  states  is  simply  regulated,  by  Con- 
gress. From  this  arises  the  presumption  that  the  mails 
are  less  subject  to  interference  than  is  interstate  trade.  Has 
this  in  fact  proved  to  be  the  case?6 

The  first  question  as  to  the  rights  of  the  states  was 
raised  in  1812,  when  the  general  assembly  of  the  Presby- 
terian Church  and  the  Synod  of  Pittsburgh  memorialized 
Congress  to  suspend  the  carrying  and  opening  of  the  mails 
on  Sunday,  but,  owing  to  the  "  peculiar  crisis  of  the  United 
States  "  then  pending,  the  petitions  were  withdrawn  and  the 
House  Committee  on  the  Postomce  and  Postroads  did  not 
consider  the  requests  on  their  merits.7  In  practice  the 
activities  were  lessened,  offices  at  which  the  mail  arrived 
on  Sunday  being  kept  open  for  one  hour  only,  and  that  not 
during  the  time  of  public  worship.  So,  the  Senate  Com- 
mittee to  which  similar  memorials  were  referred,  deemed 
it  inexpedient  to  make  any  change,  particularly  "consider- 
ing the  condition  of  the  country,  engaged  in  war,  render- 
ing frequent  communication  through  the  whole  extent  of 
it  absolutely  necessary."8 

The  practice  to  which  objection  was  made  had  obtained 
since  the  adoption  of  the  Constitution.  By  the  postal  act 
passed  in  i8io9  it  was  made  a  duty  of  postmasters  "at  all 

6  There  is  also  the  question  of  state  power  over  postroads,  but 
this  has  been  treated  in  Chapter  III,  above,  p.  82  ff. 

7  Miscellaneous   State   Papers,   vol.   ii    (American    State   Papers, 
vol.  xxi),  p.  194. 

8  American  State  Papers  (Postomce),  vol.  xv,  p.  47. 

9  2  Stat.  L.  592. 


POWER   OF   STATES   TO   INTERFERE   WITH    MAILS         I2Q 

reasonable  hours,  on  every  day  of  the  week,  to  deliver" 
mail  to  the  proper  persons,  and  since  this  provision  was 
reenacted  in  i82510  protests  were  still  received  from  a  num- 
ber of  the  states  in  which  rigorous  Sunday  observance  laws 
had  been  passed.  Upon  the  memorials  which  were  pre- 
sented in  1829  the  Senate  Committee  acted  unfavorably,  but 
the  House  Committee  acceded  so  far  as  to  propose  the 
discontinuance  of  delivery,  but  the  maintenance  of  trans- 
portation;11 the  chief  objection  seemed  to  be  to  the  keeping 
open  of  the  postoffices  and  not  to  the  carrying  of  the  mails, 
for  which,  it  was  realized,  the  greatest  possible  expedition 
was  desirable.  In  1830  counter  memorials  opposed  "the 
interference  of  Congress  upon  the  ground  that  it  would  be 
legislating  upon  a  religious  subject  and  therefore  uncon- 
stitutional/'12 but  this  argument  is  clearly  untenable,  since 
Sunday  legislation  has  uniformly  been  upheld,  not  upon 
religious  grounds,  but  as  a  valid  exercise  of  the  police 
power,18  and  Congress  certainly  has  analogous  authority  so 
far  as  concerns  the  conduct  of  government  business. 

During  the  whole  of  this  period,  however,  when  certain 
localities  and  religious  bodies  desired  observance  of  Sunday 
by  the  postoffice,  the  authority  of  Congress  to  make  such 
regulations  as  it  might  see  fit  for  the  transportation  of  the 
mails,  was  not  seriously  questioned,  and  the  states  did  not 
attempt,  under  their  police  power,  themselves  to  take  affirma- 
tive action.  One  of  the  committee  reports  suggested,  but 
did  not  argue,  a  contrary  proposition  when  it  asked:  "If 
the  arm  of  the  government  be  necessary  to  compel  respect 
and  obey  the  laws  of  God,  do  not  the  state  governments 
possess  infinitely  more  power  in  this  respect?"  But  this 
implication  of  authority  in  the  states  to  interfere  with  the 
postal  function  is  later  denied  when  the  committee  says  that 

10  4  Stat  L.  102. 

11  American  State  Papers   (Postoffice),  vol.  xv,  p.  211.    For  the 
lengthy  memorials  presented,  see  ibid.,  pp.  229-241. 

12  Ibid.,  p.  231. 

13  Freund,  Police  Power,  p.  168  ff. 


I3O  THE   POSTAL   POWER   OF   CONGRESS 

in  order  to  insure  effective  Sabbath  observance  it  should  be 
made  a  crime  to  receive,  write,  or  read  letters.14  Congress, 
however,  is  the  sole  judge  of  the  primary  question.  As  a 
House  Committee  said  in  1817:  "The  power  'to  establish 
postoffices  and  postroads'  is  by  the  Constitution  of  the 
United  States  exclusively  tested  in  Congress ;  and  the  trans- 
portation and  distribution  of  the  mail,  at  such  times  and 
under  such  circumstances  as  the  public  interest  may  require, 
are  necessarily  incident  to  that  power."15 

It  should  be  remembered,  however,  that  the  law  provided 
for  delivery  "at  all  reasonable  hours,  on  every  day  of  the 
week,"  and  so  the  question  is  different  from  that  decided 
by  the  Supreme  Court  of  the  United  States  in  Hennington 
v.  Georgia,16  where  it  was  held  that  a  state  statute  pro- 
hibiting the  running  of  freight  trains  on  Sunday  was,  in 
the  absence  of  congressional  regulation  of  the  subject,  not 
invalid  as  interfering  with  interstate  commerce.  But  even 
if  Congress  had  not  provided  for  the  carriage  of  the  mails 
on  Sunday,  there  could  be  no  stoppage  under  a  state  statute, 
since  the  subject  is  one  for  exclusive  federal  regulation; 
and  if  the  freight  trains  in  the  Georgia  case  had  carried 
mails,  the  decision  would  have  been  otherwise. 

Similarly,  the  state  laws  which  provide  punishment  for 
working  on  Sunday  are  inoperative  as  applied  to  postal 
employees  (in  discharge  of  their  duty  imposed  by  federal 
regulations)  even  though  the  local  statute  may  make  no 
express  exception.  The  question  has  rarely  come  before 
the  courts,  but  it  has  been  held  a  work  of  necessity  to  shoe 

14  American  State  Papers   (Postpffice),  vol.  xv,  p.  230.    See  an 
interesting  article  on  this  subject  in  the  North  American  Review, 
July,  1830. 

15  American  State  Papers  (Postoffice),  vol.  xv,  p.  358. 

16  163  U.  S.  299  (1896).    "...  legislative  enactments  of  the  states 
passed  under  their  admitted  police  power,  and  having  a  real  relation 
to  the  domestic  peace,  order,  health  and  safety  of  their  people,  but 
which,  by  their  necessary  operation,  affect  to  some  extent,  or  for  a 
limited  time,  the  conduct  of  commerce  among  the  states,  are  yet  not 
invalid  by  force  alone  of  the  grant  of  power  to  Congress  to  regulate 
such  commerce,  if  not  obnoxious  to  some  other  constitutional  pro- 
vision or  destructive  of  some  right  secured  by  fundamental  law.   .   .   ." 


POWER   OF   STATES   TO   INTERFERE   WITH    MAILS 

horses  used  by  a  stage  company  in  transporting  the  mail.17 
The  work  done  by  postal  employees  would,  therefore,  be 
necessary  within  the  exemption  made  by  nearly  all  Sunday 
observance  laws ;  but  if  this  were  not  the  case,  the  laws 
would  not  apply. 

Closely  allied  to  this  question  is  that  of  how  far  the 
states  may  go  in  making  police  regulations,  regard  for  which 
will  result  in  a  temporary  delay  of  the  mails.  As  early  as 
1817  it  was  held  by  a  federal  circuit  court  that  a  municipal 
corporation  is  competent  to  prevent  the  reckless  driving  of 
a  mail  carrier  through  crowded  streets.18  Of  similar  im- 
port was  the  advice  given  the  postoffice  department  in  1852 
by  Attorney  General  Crittenden,  that  municipal  ordinances 
prohibiting  railroad  trains  from  running  at  a  rate  of  more 
than  six  miles  an  hour  within  the  town  limits,  the  mails 
thereby  being  delayed,  were  valid  regulations  and  not  in 
conflict  with  the  act  of  Congress. 

"When  such  regulations,"  said  the  opinion,  "are  fairly 
and  discreetly  made  with  intent  to  preserve  the  peace,  safety 
and  well  being  of  the  inhabitants  of  the  city,  they  may  be 
said  to  flow  from  powers  necessary  and  proper  in  them- 
selves, which  the  act  of  Congress  does  not  intend  to  take 
away  or  impugn."19 

17  Nelson  v.  State,  25  Texas  App.  599  (1888).  In  some  states  ex- 
press exemptions  are  made  for  the  transportation  of  the  mail.  Cf. 
State  v.  Norfolk  &  W.  R.  Co.,  33  W.  Va.  440  (1890).  A  typical 
Sunday  observance  statute  is  the  following :  "  No  person  whatsoever 
shall  work  or  do  any  bodily  labor  on  the  Lord's  day,  commonly 
called  Sunday ;  and  no  person  having  children  or  servants  shall  com- 
mand, or  wittingly  or  willingly  suffer  any  of  them  to  do  any  manner 
of  work  or  labor  on  the  Lord's  day  (works  of  necessity  and  charity 
always  excepted)"  (Public  General  Laws  of  Maryland  (ed.  of  1904) > 
art.  xxvii,  sec.  384).  The  general  proposition  that  the  state  regula- 
tions do  not  apply  to  postal  employees  is  supported  by  Commonwealth 
v.  Knox,  6  Mass.  76  (1809),  which  held  that  it  is  not  an  indictable 
offence  for  a  carrier  of  the  mail  to  travel  on  Sunday.  This  exemp- 
tion was  not  applied  to  passengers,  "  nor  may  he  [the  carrier]  blow 
his  horn  to  the  disturbance  of  serious  people."  An  indictment  did 
lie,  however,  against  the  chief  justice  of  Massachusetts  and  his 
associates  for  travelling  on  Sunday  (1793).  See  "Sunday  Laws," 
in  2  American  Law  Review,  226. 

is  U.  S.  y.  Hart,  I  Peters'  C  C.  390  (1817). 

19  5  Opinions  of  the  Attorneys  General,  554  (1852). 


132  THE   POSTAL   POWER  OF   CONGRESS 

At  later  dates  the  validity  of  similar  regulations  requir- 
ing trains  to  stop  at  particular  points  was  passed  upon  by 
the  United  States  Supreme  Court  and  the  exercise  of  local 
authority  was,  in  several  cases,  declared  inoperative,  pri- 
marily upon  the  ground  that  it  interfered  with  the  freedom 
of  trade  between  the  states,  and  the  commercial,  rather  than 
the  postal,  power  was  relied  upon,  as  in  federal  incorpora- 
tion, to  furnish  the  basis  of  the  court's  decisions.  But  the 
fact  that,  in  many  instances,  the  trains  carried  the  mails 
under  contracts  which  required  expedition  was  incidentally 
referred  to  as  a  further  reason  for  declaring  local  regula- 
tions invalid. 

Thus,  when  an  Illinois  statute  required  an  interstate  train 
to  turn  aside  from  the  direct  route  for  a  stop  at  a  station 
three  and  one  half  miles  away,  the  Supreme  Court  held 
the  requirement  to  be  "an  unconstitutional  hindrance  and 
obstruction  of  interstate  commerce  and  of  the  passage  of  the 
mails  of  the  United  States.  .  .  . 

"  It  may  well  be,  as  held  by  the  courts  of  Illinois,  that  the 
arrangements  made  by  the  company  with  the  Postoffice  De- 
partment of  the  United  States  cannot  have  the  effect  of 
abrogating  a  reasonable  police  regulation  of  the  state.  But 
a  statute  of  the  state,  which  unnecessarily  interferes  with  the 
speedy  and  uninterrupted  carriage  of  the  mails  of  the  United 
States,  cannot  be  considered  as  a  reasonable  police  regula- 
tion."20 And  in  a  later  case  the  court  said: 

"  The  fact  that  the  company  has  contracts  to  transport 
the  mails  of  the  United  States  within  a  time  which  requires 
great  speed  for  the  trains  carrying  them,  while  not  con- 
clusive, may  still  be  considered  upon  the  general  question 
of  stopping  such  trains  at  certain  stations  within  the  bound- 
aries of  a  state.  The  railroad  has  been  recognized  by 
Congress  and  is  the  recipient  of  large  land  grants,  and  the 
carrying  of  the  mails  is  a  most  important  function  of  such 

20  Illinois  Central  R.  Co.  v.  Illinois,  163  U.  S.  142  (1896).  See 
also  143  111.  434;  19  L.  R.  A.  119  (1892). 


POWER   OF   STATES   TO   INTERFERE   WITH    MAILS         133 

a  road."21  The  test  as  laid  down  by  the  United  States 
Supreme  Court  is,  therefore,  simply  one  of  reasonableness 
and  necessity;  and  the  courts,  not  the  legislatures,  are  to 
determine  the  question. 

But  there  are  many  cases  in  which  the  problem  is  not  so 
simple,  and  where  the  state  regulations  are  so  important 
that  their  violation  should  not  be  permitted  under  the  cloak 
of  federal  sanction.  Particularly  is  this  true  where  the 
detention  of  a  postal  empolyee  is,  superficially,  forbidden 
under  the  federal  statutes,  and  there  arises  the  dilemma 
that  either  the  governmental  agent  is  immune  from  inter- 
ference while  in  discharge  of  his  duties  and  at  all  times 
for  acts  committed  in  the  course  of  his  employment,  or 
that  the  national  regulations  must  give  way. 

For  example,  from  the  beginning  of  congressional  activity 
under  the  postal  power,  there  has  constantly  been  a  prohibi- 
tion, under  severe  penalties,  of  any  obstruction  of  the  mail. 
The  federal  district  court  for  Maryland  considered  a  case 
where  stage  horses  upon  which  an  innkeeper  had  a  lien 
were  stopped  in  the  public  highway  while  driving  a  coach 
containing  the  mail.  The  court  held  that  since  the  United 
States  could  not  be  sued,  "the  defendant  could  not  justify 
the  stopping  of  the  mail  on  principles  of  common  law,  as 
they  apply  to  individuals  and  to  the  government."  But, 
further,  the  defendant  was  not  justifiable  under  the  act  of 
Congress  which  introduced  no  exception.  "Whether  the 
acts  which  it  prohibits  to  be  done  were  lawful  or  unlawful 
before  the  operation  of  that  law,  or  independent  of  it,  might 
or  might  not  be  justified,  is  not  material.  This  law  does 
not  allow  any  justification  of  a  wilful  and  voluntary  act  of 
obstruction  to  the  passage  of  the  mail.  If,  therefore,  courts 
or  juries  were  to  introduce  exceptions  not  found  in  the  law 
itself,  by  admitting  justifications  for  the  breach  of  the  act, 
which  justifications  the  act  does  not  allow  to  be  made,  it 
would  be  an  assumption  of  legislative  power."22 

21  Mississippi  R.  Commission  v.  Illinois  C.  R.  Co.,  203  U.  S.  335 
(1906).    See  also  Atlantic  Coast  Line  R.  Co.  v.  Wharton,  207  U.  S. 
328  (1907). 

22  U.  S.  v.  Barney,  3  Hughes'  Reports  (U.  S.  C.  C.)  545  (1810). 


134  THE   POSTAL   POWER  OF   CONGRESS 

And  when  a  warrant  in  a  civil  suit  was  served  on  a  mail 
carrier  and  he  was  detained  thereby,  Chief  Justice  Taney 
(on  circuit)  held  that  the  warrant  was  not  justification  to 
the  traverser,  a  constable,  yet  the  mere  serving  "  would  not 
render  the  party  liable,  to  an  indictment  under  this  law. 
But  if,  by  serving  the  warrant,  he  detained  the  carrier,  he 
would  then  be  liable."23  Here  also  the  immunity  was  simply 
as  to  civil  proceedings. 

But  when  a  carrier,  while  discharging  his  duty,  was 
arrested  upon  an  indictment  for  murder,  and  it  was  argued 
that  this  was  an  obstruction  of  the  mail  within  the  federal 
statute,  the  Supreme  Court  refused  to  listen  to  the  plea, 
and  held  that  the  law,  "  by  its  terms  applies  only  to  persons 
who  'knowingly  and  wilfully'  obstruct  the  passage  of  the 
mail  or  of  its  carrier;  that  is,  to  those  who  know  that 
the  acts  performed  will  have  that  effect  and  perform  them 
with  the  intention  that  such  shall  be  their  operation.  When 
the  acts  which  create  the  obstruction  are  in  themselves 
unlawful,  the  intention  to  obstruct  will  be  imputed  to  their 
author,  although  the  attainment  of  other  ends  may  have 
been  his  primary  object.  The  statute  has  no  reference  to 
acts  lawful  in  themselves,  from  the  execution  of  which  a 
temporary  delay  to  the  mails  unavoidably  follows.  All 
persons  in  the  public  service  are  exempt,  as  a  matter  of 
public  policy,  from  arrest  upon  a  civil  process  while  thus 
engaged.  Process  of  that  kind  can,  therefore,  furnish  no 
justification  for  the  arrest  of  a  carrier  of  the  mail.  .  .  . 
The  rule  is  different  when  the  process  is  issued  upon  a 
charge  of  felony.  No  officer  or  employee  of  the  United 
States  is  placed  by  his  position,  or  the  services  he  is  called 
to  perform,  above  responsibility  to  the  legal  tribunals  of  the 
country,  and  to  the  ordinary  processes  for  his  arrest  and 
detention  when  accused  of  a  felony,  in  the  forms  prescribed 
by  the  Constitution  and  laws. 

"  The  public  inconvenience  which  may  occasionally  follow 
from  the  temporary  delay  in  the  transmission  of  the  mail 

23  U.  S.  v.  Harvey,  8  Law  Reporter,  77  (U.  S.  C.  C,  1845). 


POWER   OF   STATES   TO   INTERFERE   WITH    MAILS         135 

caused  by  the  arrest  of  its  carriers  on  such  charges  is  far 
less  than  that  which  would  arise  from  extending  to  them 
the  immunity  for  which  the  counsel  of  the  government  con- 
tends. Indeed,  it  may  be  doubted  whether  it  is  competent 
for  Congress  to  exempt  the  employees  of  the  United  States 
from  arrest  on  criminal  process  from  the  state  courts  when 
the  crimes  charged  against  them  are  not  merely  mala  pro- 
hibita  but  are  mala  in  se.  But  whether  such  legislation 
of  that  character  be  constitutional  or  not,  no  intention  to 
extend  such  exemption  should  be  attributed  to  Congress 
unless  clearly  manifested  by  its  language."24 

Thus,  the  Supreme  Court  of  Maine  decided  that  a  mail 
carrier,  while  in  the  performance  of  his  duties,  is  liable  to 
arrest  for  an  offense  against  the  law  of  the  state,  even 
though  it  be  not  a  felony  but  a  violation  of  a  liquor  regula- 
tion, and  the  public  employment  of  the  carrier  will  not 
justify  him  in  assaulting  the  officer  who  serves  the  warrant.25 
It  was  held,  further,  that  preventing  a  horse  from  being 
taken  from  the  stable  for  the  purpose  of  carrying  the  mail 
was  no  offense  under  the  federal  law  since  the  mail  had  to 
be  in  transitu.26 

The  attachment,  knowingly,  of  a  coach  carrying  the  mail 
is  void,  being  an  obstruction  ;27  but  levy  on  and  sale  of  a 
ferryboat  used  to  carry  the  mail  do  not  constitute  an  ob- 
struction.28 In  United  States  v.  De  Mott29  it  was  held 
that  the  statute  "is  applicable  to  a  person  stopping  a  train 
carrying  the  United  States  mail,  although  he  has  obtained 
a  judgment  and  writ  of  possession  from  a  state  court  against 
the  railroad  company  in  respect  to  lands  about  to  be  crossed 
by  such  train."  It  is,  moreover,  not  a  sufficient  plea  to  an 


2*U.  S.  v.  Kirby,  7  Wall.  482  (1869)  ;  see  also  U.  S.  v.  Clark,  23 
Int.  Rev.  Rec.  306  (U.  S.  D.  C,  1877). 

25  Penny  v.  Walker,  64  Maine  430  (1874). 

26  U.   S.   v.   McCracken,  3  Hughes'  Reports    (U.   S.  C.   C)   544 
(1878). 

'  Harmon  v.  Moore,  59  Me.  428  (1871). 

28Lathrop  v.  Middleton,  23  Cal.  257  (1863).  In  this  case,  how- 
ever, the  boat  was  at  the  time  in  an  unfinished  condition  and  had 
not  been  used  on  the  ferry. 

29  3  Fed.  Rep.  478  (1880). 


136  THE   POSTAL   POWER   OF   CONGRESS 

indictment  for  obstructing  the  mails,  that  the  defendant  was 
required  by  state  law  to  collect  tolls  in  advance  from  all 
drivers  of  wagons.  "It  is  not  the  right  of  the  company  to 
the  tolls  under  the  state  law  which  is  doubted,"  said  the 
Court,  "but  the  right  to  stop  the  passage  of  the  mails  to 
enforce  their  collection  which  is  denied."30 

The  rule  may  thus  be  stated  to  be  as  follows :  In  order  to 
guard  against  obstruction  of  the  mails,  postoffice  employees, 
while  in  discharge  of  their  duty,  have  immunity  from  inter- 
ference on  civil  processes,  but  are  liable  for  felonies,  and 
perhaps,  misdemeanors.  But  a  different  and  more  serious 
question  upon  which  these  cases  throw  little  or  no  light,  is 
presented  when  a  postal  agent  in  the  discharge  of  a  duty 
imposed  by  federal  law  (neglect  of  duty  being  punishable) 
thereby  performs  an  act  which  has  been  made  criminal  by 
the  state.31  There  are,  naturally,  but  few  cases  when  this 
conflict  arises,  but  it  is  entirely  possible,  perhaps  the  most 
favorable  opportunity  being  when  a  postmaster  distributes 
certain  mail  matter,  the  possession  or  dissemination  of  which 
the  state  has  declared  unlawful.  This  conflict  was  once 
presented  very  acutely. 

In  the  senatorial  debate  on  Calhoun's  bill  to  deal  with 
incendiary  publications  in  the  mails,  the  federal  question 

30  United  States  v.  Sears,  55  Fed.  Rep.  268  (1893).    In  Turnpike 
Co.  v.  Newland,  15  N.  C.  463  (1834),  it  was  held  that  a  mail  coach 
was  a  "pleasure  carriage"  within  the  meaning  of  the  local  statute 
imposing  tolls  for  the  use  of  the  road.    The  use  of  state  facilities 
by  persons  employed  in  the  federal  civil  service,  said  the  court, 
"must  be  deemed  intended  to  be  on  the  terms  prescribed  to  all 
persons,  unless  the  law  under  which  it  is  performed  declared  the 
contrary.    We  have  found  no  act  of  Congress  exempting  persons 
or  carriages  engaged  in  the  business  of  the  postoffice  from  the  pay- 
ment of  tolls  for  passing  ferries,  bridges  or  roads."     Payment  was, 
therefore,  required. 

31  The  seriousness  of  this  conflict  was  well  expressed  by  Chief 
Justice   Marshall  in   Cohens  v.   Virginia,  6  Wheaton  264    (1821). 
"  To  interfere  with  the  penal  laws  of  a  state,"  he  said,  "  where  they 
are  not  levelled  against  the  legitimate  powers  of  the  Union,  but  have 
for  their  sole  object  the  internal  government  of  the  country,  is  a 
very  serious  measure  which  Congress  cannot  be  disposed  to  adopt 
lightly  or  inconsiderately.    The  motives  for  it  must  be  serious  and 
weighty.    It   would   then  be   taken   deliberately   and   the   intention 
would  be  clearly  and  unequivocally  expressed." 


POWER   OF   STATES   TO   INTERFERE   WITH    MAILS         137 

of  interference  with  the  freedom  of  the  press  received  the 
greatest  attention32  and  the  equally  important  question  of 
the  validity  of  state  legislation  was  only  meagrely  con- 
sidered. Nearly  all  of  the  Southern  States  had  extremely 
stringent  laws,  making  the  publication,  circulation  and  even 
the  possession  of  objectionable  literature  punishable  by 
severe  penalties.  Postal  officials  were  not  exempted;  in 
Virginia  they  were  specifically  included.33  Nevertheless, 
the  objectionable  dissemination  continued,  and  Amos  Ken- 
dall, postmaster  general,  who  had  left  the  problem  largely 
in  the  hands  of  local  officers,34  was  importuned  from  many 
sources  to  take  decisive  action.  The  citizens  of  Peters- 
burg, Va.,  on  August  8,  1835,  petitioned  him  to  "  adopt  such; 
lawful  regulations  in  his  department  as  may  be  calculated 
to  prevent"  the  dissemination  of  incendiary  papers.  More 
elaborate  resolutions  were  adopted  at  Richmond,  and  at 
Charleston  it  was  declared: 

"  That  the  postoffice  establishment  cannot  consistently 
with  the  Constitution  of  the  United  States  and  the  objects 
of  such  an  institution,  be  converted  into  an  instrument  for 
the  dissemination  of  incendiary  publications,  and  that  it  is 
the  duty  of  the  federal  government  to  provide  that  it 
shall  not  be  so  prostituted,  which  can  easily  be  effected  by 
merely  making  it  unlawful  to  transport  by  the  public  mail, 
through  the  limits  of  any  state,  any  seditious  papers,  for- 
bidden by  the  laws  of  such  state,  to  be  introduced  or  cir- 
culated therein,  and  by  adopting  the  necessary  regulations 
to  effect  the  object."  The  resolutions  then  went  on  to 
assert  "the  right  of  each  state  to  provide  by  law  against 
the  introduction  of  a  moral  pestilence,  calculated  to  endanger 
its  existence,  and  to  give  authority  to  their  (sic)  courts 
adequate  to  the  suppression  of  the  evil."35 

32  See  above,  Chapter  IV. 

33  Hurd,  Law  of  Freedom  and  Bondage,  vol.  ii,  pp.  9,  10. 

34  See  above,  p.  105. 

35  Niles'  Register,  vol.  xlviii,  p.  446.    The  Richmond  resolutions 
were  less  elaborate,  simply  requesting  the  postmaster  general  "to 
use  all  powers  vested  in  him  by  law  "  to  prevent  the  dissemination 
and  delivery  of  the  objectionable  matter. 


138  THE   POSTAL   POWER   OF   CONGRESS 

To  the  Petersburg  resolutions,  Kendall  replied  at  some 
length,  very  conciliatingly,  and  pleaded  that  the  discretion 
was  not  vested  in  him.  "  Having  no  official  right  to  decide 
upon  the  character  of  papers  passing  through  the  mails," 
he  said,  "  it  is  not  within  my  power  by  any  *  lawful  regula- 
tion '  to  obviate  the  evil  of  which  the  citizens  of  Peters- 
burg complain.  If  any  necessity  exists  for  a  supervision 
over  the  productions  of  the  press  which  are  transmitted  by 
mail,  all  will  agree  that  it  ought  not  to  be  vested  in  the  head 
of  the  executive  department.  .  .  . 

"  For  the  present  I  perceive  no  means  of  relief  except 
in  the  responsibilities  voluntarily  assumed  by  the  post- 
masters through  whose  offices  the  seditious  matter  passes."36 

In  a  letter  to  Gouverneur,  the  postmaster  at  New  York, 
who  had  exercised  his  discretion  in  detaining  certain  pub- 
lications, Kendall  expressed  the  same  views  but  argued  the 
constitutional  problems  at  greater  length.  "As  a  measure 
of  great  public  necessity,"  he  said,  "you  and  the  other  post- 
masters who  have  assumed  the  responsibility  of  stopping 
these  inflammatory  papers,  will,  I  have  no  doubt,  stand 
justified  in  that  step  before  your  country  and  all  mankind." 
Perhaps  also,  he  suggested,  the  abolitionists  did  not  have 
their  imagined  clear  legal  right  to  the  use  of  the  mails  for 
distributing  insurrectionary  papers.  When  the  states  be- 
came independent,  he  argued,  "they  acquired  a  right  to 
prohibit  the  circulation  of  such  papers  within  their  terri- 
tories; and  their  power  over  the  subject  of  slavery  and  its 
incidents  was  in  no  degree  diminished  by  the  adoption  of 
the  federal  Constitution.  .  .  . 

"  Now,"  he  asked,  "  have  these  people  a  legal  right  to 
do  by  the  mail  carriers  and  postmasters  of  the  United  States, 
acts,  which,  if  done  by  themselves  or  their  agents,  would 
lawfully  subject  them  to  the  punishment  due  felons  of  the 
deepest  dye?  Are  the  officers  of  the  United  States  com- 
pelled by  the  Constitution  and  laws  to  become  the  instru- 
ments and  accomplices  of  those  who  design  to  baffle  and 

36  Niles'  Register,  vol.  xlix,  p.  7. 


POWER   OF   STATES   TO   INTERFERE   WITH    MAILS         139 

make  nugatory  the  constitutional  laws  of  the  states, — to  fill 
them  with  sedition,  murder,  insurrection, — to  overthrow 
those  institutions  which  are  recognized  and  guaranteed  by 
the  Constitution  itself? 

"And  is  it  entirely  certain  that  any  existing  law  of  the 
United  States  would  protect  mail  carriers  and  postmasters 
against  the  penalties  of  the  state  laws,  if  they  shall  know- 
ingly carry,  distribute  or  hand  out  any  of  these  forbidden 
papers?  ...  It  might  be  vain  for  them  to  plead  that  the 
postoffice  law  made  it  their  clear  duty  to  deliver  all  papers 
which  came  by  mail.  In  reply  to  this  argument,  it  might 
be  alleged,  that  the  postoffice  imposes  penalties  on  post-, 
masters  for  '  improperly '  detaining  papers  which  come  by 
the  mail;  and  that  the  detention  of  the  papers  in  question 
is  not  improper  because  their  circulation  is  prohibited  by 
valid  state  laws.  Ascending  to  a  higher  principle,  it  might 
be  plausibly  alleged,  that  no  law  of  the  United  States  can 
protect  from  punishment  any  man,  whether  a  public  officer 
or  citizen,  in  a  commission  of  an  act  which  the  state,  acting 
within  the  undoubted  sphere  of  her  reserved  rights  has 
declared  to  be  a  crime. 

"  Every  citizen  may  use  the  mail  for  any  lawful  purpose. 
The  abolitionists  may  have  a  legal  right  to  its  use  for  dis- 
tributing their  papers  in  New  York,  where  it  is  lawful  to 
distribute  them,  but  it  does  not  follow  that  they  have  a  legal 
right  to  that  privilege  for  such  a  purpose  in  Louisiana  or 
Georgia  where  it  is  unlawful."37  Arguing  in  this  manner, 
Kendall  arrived  at  his  conclusion  that  the  postmasters  should 
use  their  own  judgment  and  act  on  their  own  responsibility. 

The  postmaster  general's  letter  has  been  so  fully  set  forth 
because  it  presents,  although  it  by  no  means  solves,  all  the 
constitutional  questions  to  which  this  situation  gave  rise. 
The  disputed  issues  were  destined  never  to  come  before  the 
Supreme  Court  of  the  United  States  for  a  judicial  consid- 
eration ;  they  were,  however,  to  be  meagrely  discussed  on  the 
floor  of  the  Senate  and  twenty  years  later  were  to  be  passed 

37  Niles'  Register,  vol.  xlix,  p.  9. 


I4O  THE   POSTAL   POWER   OF   CONGRESS 

upon  by  the  Attorney  General  in  an  official  opinion.  Was 
the  Virginia  law,  including  postal  officials,  constitutional? 
Could  they  be  punished  for  receiving  and  circulating  the 
prohibited  matter  when  to  do  so  was  required  by  federal 
law  as  a  part  of  their  official  duty?  Could  a  citizen  of  the 
state  be  punished  for  receiving  mail  of  a  certain  character? 
Were  the  states  competent  to  exclude  from  their  borders 
publications  calculated  to  stir  up  disaffection  among  the 
slave  population? 

Attorney  General  Caleb  Cushing  was  called  upon,  in 
1857,  to  pass  upon  some  of  these  questions.  The  facts  of 
the  particular  case  presented  to  him  were  these:  The  post- 
master of  Yazoo  City  refused  to  deliver  a  newspaper  for  the 
"  alleged  cause  that  the  same  contained  matter  of  which  the 
tendency  and  object  were  to  produce  disaffection,  disorder 
and  rebellion  among  the  colored  population  of  the  state  of 
Mississippi ;  and  that  the  delivery  of  the  same  by  him  would 
constitute  a  penitentiary  crime  according  to  the  laws  of 
that  state."  The  removal  of  the  postmaster  for  malfea- 
sance in  office  was  requested  since  the  act  of  July  2,  1836, 
provided  punishment  for  postmasters  who  unlawfully  de- 
tained the  mail.  On  the  other  hand,  the  laws  of  Mississippi 
made  it  a  crime,  punishable  by  not  more  than  ten  years'  im- 
prisonment, to  bring  into  the  state  or  circulate  any  printed 
matter  "  calculated  to  produce  disaffection  among  the  slave 
population."38 

Cushing  declared  the  postal  power  to  be  "conferred  in 
very  imperfect  terms."  The  clause  in  the  Constitution,  he 
said,  provides  "  for  a  means  or  incident  without  providing 
for  the  principal  or  end.  Still  we  may  take  it  for  granted 
here,  that,  by  this  phrase,  the  states  designed  to  communi- 
cate the  entire  mail  power  to  the  United  States."  But,  on 
the  other  hand,  it  is  indisputable  that  "  each  state  has,  and 
must  have,  jurisdiction  as  regards  the  matter  of  insurrec- 
tion or  treason.  To  deny  this  would  be  to  deny  to  the  in- 

38  8  Opinions  of  the  Attorneys  General,  489  (1857)  ;  5  Stat.  L.  80. 


POWER   OF   STATES   TO   INTERFERE   WITH    MAILS 

habitants  of  a  state  the  power  of  self  preservation,  ...  a 
right  inalienable  and  imprescriptible." 

With  this  and  the  completeness  of  congressional  power 
over  the  mails  as  premises,  Gushing  said  the  question  was 
as  follows:  "Has  a  citizen  of  one  of  the  United  States 
plenary,  indisputable  right  to  employ  the  functions  and  the 
officers  of  the  Union  as  the  means  of  enabling  him  to  pro- 
duce insurrection  in  another  of  the  United  States  ?  Can  the 
officers  of  the  Union  lawfully  lend  its  functions  to  the  citi- 
zens of  one  of  the  states  for  the  purpose  of  promoting  in- 
surrection in  another  state? 

"  It  is  obvious  to  say  that,  inasmuch  as  it  is  the  constitu- 
tional obligation  of  the  United  States  to  protect  each  of  the 
states  against  ' domestic  violence*  and  to  make  provisions 
to  'suppress  insurrection'"  it  cannot  be  the  right  or  duty 
of  the  United  States  or  any  of  its  officers  "to  promote,  or 
be  the  instrument  of  promoting,  insurrection  in  any  part  of 
the  United  States."39 

Reasoning  thus,  Gushing  concludes  "that  a  deputy  post- 
master or  other  citizen  of  the  United  States  is  not  required 
by  law  to  become,  knowingly,  the  enforced  agent  or  instru- 
ment of  enemies  of  the  public  peace,  to  disseminate,  in 
their  behalf,  within  the  limits  of  any  one  of  the  states  of 
the  Union,  printed  matter,  the  design  and  tendency  of  which 
are  to  promote  insurrection  in  such  state."  But  at  the  out- 
set, he  said,  any  settlement  of  the  particular  case  is  involved 
in  "  a  preliminary  question  of  unsettled  fact.  The  question 
is  whether  the  contents  of  the  particular  newspaper  had  for 
their  tendency  and  object  to  incite  insurrection  in  the  state 
of  Mississippi."  There  are  questions  also  as  to  the  private 
rights  of  the  addressee  and  the  penal  obligations  of  the 
deputy  postmaster.  These  are  for  the  courts.  They  only 
can  "determine  the  question  of  the  deputy  postmaster's 

89  Mr.  Gushing  argued  (p.  494)  that  "it  cannot  be  unlawful  to 
detain  that  which  it  is  unlawful  to  deliver."  But  the  word  "  unlaw- 
ful" in  the  congressional  statute  is  not  to  be  construed  according 
to  state  regulations.  Whether  the  detention  of  the  mail  is  sanc- 
tioned must  be  determined  by  state  standards. 


142  THE   POSTAL   POWER   OF   CONGRESS 

penal  liability,  whether  on  the  side  of  the  United  States  or 
of  the  state  of  Mississippi."  The  attorney  general  thus 
comes  to  no  absolutely  definite  conclusion,  but  the  impli- 
cation is  very  strong  that  there  is  no  federal  immunity  from 
prosecution  under  the  state  law,  and,  conversely,  that  there 
can  be  no  prosecution  under  federal  law  for  neglect  of 
duty  or  malfeasance. 

To  the  same  effect,  but  more  clear  cut,  was  the  opinion  of 
John  Randolph  Tucker  sent  to  Governor  Wise  of  Virginia 
on  November  26,  1859.*°  The  laws  of  Virginia  provided 
that  "if  a  postmaster  or  deputy  postmaster  know  that  any 
such  book  or  writing  [inciting  the  negroes  to  rebellion] 
has  been  received  at  his  office  in  the  mail,  he  shall  give  no- 
tice thereof  to  some  justice,  who  shall  inquire  into  the  cir- 
cumstances and  have  such  book  or  writing  burned  in  his 
presence ;  if  it  appears  to  him  that  the  person  to  whom  it  is 
directed  subscribed  therefor,  knowing  its  character,  or 
agreed  to  receive  it  for  circulation  to  aid  the  purposes  of  the 
abolitionists  the  justice  shall  commit  such  person  to  jail. 
If  any  postmaster  or  deputy  postmaster  violate  this  section, 
he  shall  be  fined  not  exceeding  $200." 

In  his  opinion,  Tucker,  as  attorney  general  of  the  state, 
held  the  law  to  be  entirely  constitutional.  It  does  not,  he 
said,  "properly  considered,  conflict  with  federal  authority 
in  the  establishment  of  postoffices  and  postroads.  This  fed- 
eral power  to  transmit  and  carry  mail  matter  does  not  carry 
with  it  the  power  to  publish  or  circulate.  .  .  . 

"With  the  transmission  of  the  mail  matter  to  the  point 
of  its  reception  the  federal  power  ceases.  At  that  point 
the  power  of  the  state  becomes  exclusive.  Whether  her 
citizens  shall  receive  the  mail  matter  is  a  question  exclu- 
sively for  her  determination.  .  .  . 

"  It  is  true  that  the  postmaster  is  an  officer  of  the  federal 
government ;  but  it  is  equally  true  that  he  is  a  citizen  of  the 
state.  By  taking  a  federal  office  he  cannot  avoid  his  duty 

40  26  Cong.  Rec.,  Part  9,  Appendix,  Part  I,  p.  4ff.  (53d  Cong.,  2d 
Sess.). 


POWER   OF   STATES   TO   INTERFERE   WITH    MAILS         143 

as  a  citizen ;  and  his  obligation  to  perform  the  duties  of  his 
office  cannot  absolve  him  from  obedience  to  the  law  of  the 
Commonwealth.  .  .  . 

"  I  have  no  hesitation  in  saying  that  any  law  of  Congress 
impairing  directly  or  indirectly  this  reserved  right  of  the 
state  is  unconstitutional,  and  that  the  penalty  of  the  state 
law  would  be  imposed  upon  a  postmaster  offending  against 
it,  though  he  should  plead  his  duty  to  obey  such  unconstitu- 
tional act  of  Congress." 

Tucker's  memorandum  was  sent  to  Postmaster  General 
Holt,  who  cited  Cushing's  opinion  (which  Tucker  had  not 
seen),  and  ruled  against  the  supremacy  of  the  federal  law. 
"  The  people  of  Virginia,"  said  Holt,  "  may  not  only  forbid 
the  introduction  and  dissemination  of  such  documents 
within  their  borders,  but  if  brought  there  in  the  mails  they 
may,  by  appropriate  legal  proceeding,  have  them  destroyed. 
They  have  the  same  right  to  extinguish  firebrands  thus  im- 
piously hurled  into  the  midst  of  their  houses  and  altars  that 
a  man  has  to  pluck  the  burning  fuse  from  a  bombshell  which 
is  about  to  explode  at  his  feet." 

It  would  seem,  however,  that  such  reasoning,  while  care-  ! 
ful  and  persuasive,  is  erroneous.  At  the  time  these  opin- 
ions were  rendered,  the  absolute  supremacy  of  federal  law, 
when  constitutionally  enacted,  was  not  accepted  without 
question.  It  is  true  that,  prior  to  this,  provision  had  been 
made  for  the  removal,  before  trial,  of  a  prosecution  arising 
under  the  revenue  laws  of  the  United  States,  and  also  that 
federal  judges  should  have  power  to  grant  writs  of  habeas 
corpus  in  all  cases  of  a  prisoner  or  prisoners  in  jail  or  con- 
finement "  where  he  or  they  shall  be  committed  or  confined 
on,  or  by  any  authority  or  law,  for  any  act  done,  or  omitted 
to  be  done  in  pursuance  of  a  law  of  the  United  States,  or 
any  order,  process  or  decree  of  any  judge  or  court  thereof."41 

To  be  sure,  this  was  only  a  means  of  checking  state  ac- 
tion, but  from  the  doctrine  of  federal  supremacy  it  logically 
follows  that  it  is  not  within  the  power  of  a  state  to  punish 

41  Act  of  March  2,  1833  (4  Stat.  L.  632). 


144  THE   POSTAL   POWER  OF   CONGRESS 

acts  done  under  authority  of  federal  law.  At  the  time  the 
question  of  incendiary  publications  was  acute,  the  Supreme 
Court  had  not  decided  the  line  of  cases  upholding  the  right 
of  removal  to  federal  courts  and  sanctioning  the  release  of 
officers  for  acts  done  in  pursuance  of  federal  authority. 
These  cases  declared  it  to  be  "  an  incontrovertible  principle 
that  the  government  of  the  United  States  may,  by  means  of 
physical  force  exercised  through  its  agents,  execute  on  every 
foot  of  American  soil,  the  powers  and  functions  that  belong 
to  it.  This  necessarily  involves  the  power  to  command 
obedience  to  its  laws,  and  hence  the  power  to  keep  the  peace 
to  that  extent.  This  power  to  enforce  its  laws  and  to  exe- 
cute its  functions  does  not  derogate  from  the  power  of  the 
states  to  execute  its  laws  at  the  same  time  and  in  the  same 
places.  The  one  does  not  exclude  the  other,  except  where 
both  cannot  be  executed  at  the  same  time.  In  that  case  the 
words  of  the  Constitution  itself  show  which  is  to  yield. 
'  This  Constitution,  and  all  laws  which  shall  be  made  in 
pursuance  thereof  .  .  .  shall  be  the  supreme  law  of  the 
land.' "« 

And  on  the  basis  of  this  principle,  there  is  no  reason  to 
hold  that  the  postal  employees  could  not  be  punished  for 
distributing  the  incendiary  matter  when  it  was  their  federal 
duty  so  to  do.  To  be  sure,  as  urged  by  Cushing  and  Tucker, 
the  United  States  guarantees  each  state  a  republican  form  of 
government  and  protects  it  against  domestic  violence,  but 
this  does  not  mean  that  a  law  which  is  passed  by  Congress  to 
apply  uniformly  to  the  whole  country,  and  which  may,  on 
account  of  peculiar  local  conditions,  aid  insurrectionary 
movements  in  certain  of  the  states,  is  thereby  unconstitu- 
tional. The  resort  of  the  states  is  not  to  the  courts,  but  to 
Congress  for  the  repeal  of  the  harmful  measure.  Further- 
more, the  guarantee  does  not  obligate  the  United  States  to 
insure  a  state  against  the  occurrence  of  any  violence,  but 

42  Ex  parte  Siebold,  100  U.  S.  371  (1879).  See  also  Tennessee  v. 
Davis,  100  U.  S.  257  (1879),  and  I  Willoughby  on  the  Constitu- 
tion, 124. 


POWER   OF   STATES   TO   INTERFERE   WITH    MAILS         145 

simply  to  protect  it  when  the  violence  is  attempted.  Since, 
therefore,  the  federal  laws  made  criminal  the  detention  of 
any  mail  matter,  with  only  such  exceptions  as  Congress 
might  introduce,  there  was  no  way  in  which  the  states  might 
enforce  their  laws  against  incendiary  literature,  unless  they 
could  exclude  it  absolutely  from  their  borders. 

As  to  this  power,  there  are  no  judicial  precedents,  but  the 
carriage  of  the  mails  being  under  federal  auspices  and  Con- 
gress having  a  property  right  in  them,  the  authority  of  the 
states  to  exclude,  if  it  exists  at  all,  is  certainly  narrower 
than  that  in  regard  to  interstate  commerce.  As  to  this,  the 
states  may  exclude  from  their  borders  only  such  articles  as 
are  intrinsically  unfit  for  commerce  and  unmerchantable. 
The  Supreme  Court  enumerated,  as  examples,  "rags  or 
other  substances  infected  with  the  germs  of  yellow  fever, 
or  the  virus  of  small  pox,  or  cattle,  or  meat  or  other  provi- 
sions that  are  diseased  or  decayed."  These  articles  "may 
be  rightly  outlawed  as  intrinsically  and  directly  the  im- 
mediate sources  and  causes  of  destruction  to  human  health 
and  life."*3  Publications  calculated  to  incite  the  slaves  to 
rebellion  would  not  fall  within  this  classification.  The  con- 
clusion, then,  must  be  that  in  disseminating  the  incendiary 
literature,  the  postal  agents  acted  properly,  and  that  the 
state  laws  were  inoperative  as  applied  to  them.  But  if  the 
states  have  a  restricted  power  of  exclusion,  such  as  that  de- 
fined in  the  Bowman  case,  it  is,  in  effect,  a  nullity,  since  cir- 
cumstances can  hardly  be  imagined  under  which  its  exercise 
might  take  place,  without  delaying  the  mails,  or  violating 
federal  statutes  which  attach  penalties  for  opening  the  mail 
and  interfering  with  it  while  in  transitu. 

There  remains  the  further  question  whether  a  state  is 
competent  to  forbid  its  citizens  to  receive  certain  mail 
matter,  and  here  also  the  interstate  commerce  analogy  af- 
fords an  answer.  By  a  long  line  of  decisions,  principally 
in  regard  to  intoxicating  liquors,  it  has  been  established 

43  Bowman  v.  Chicago  &  Northwestern  R.  Co.,  125  U.  S.  465 
(1888). 


10 


146  THE   POSTAL   POWER  OF   CONGRESS 

that  a  state  may  not  interfere  with  a  commodity  until  it  has 
reached  the  consignee,  who  has  a  right  to  receive  shipments 
from  without  the  state.44  If  the  state  forbids  possession, 
no  matter  how  acquired,  then  the  question  of  receiving  be- 
comes academic,  since  it  would  be  impossible  to  separate  the 
two  acts.  So  also,  if  Congress  has  excluded  a  commodity 
from  interstate  commerce,  then  the  consignee's  right  to  re- 
ceive this  commodity  has  been  taken  away,  and  the  state  has 
plenary  power.45  The  same  reasoning  applies  to  the  re- 
ceiving of  mail  matter:  the  state  would  be  competent  to 
punish  only  if  Congress  has  forbidden  the  use  of  the  mails, 
as  is  the  case,  for  example,  with  lottery  tickets  and  obscene 
literature.  But  in  any  event,  a  law  directed  against  receiv- 
ing certain  mail  matter  could  just  as  well  forbid  possession, 
and  as  the  state  has  power  in  the  latter  case,  the  distinction 
is  without  importance  except  in  so  far  as  the  possession  is 
more  difficult  to  detect  than  the  receipt.  Certain  it  is,  how- 
ever, that,  as  was  attempted  by  the  incendiary  literature 
legislation,  the  state  may  not  punish  a  man  for  taking  from 
the  mails  what  the  federal  government  permits  to  be  sent. 

This  conclusion  is  applicable  to  the  validity  of  legislation 
forbidding  the  advertisement  of  intoxicating  liquors.  The 
state  may  not  keep  out,  or  prevent  the  receipt  of,  such  ad- 
vertisements or  journals  containing  them,  when  sent  through 
the  mails  or  interstate  commerce ;  it  may  forbid  the  sale  of 
such  journals  if  not  in  their  "original  packages,"46  and  if  it 
attempts  to  penalize  the  possession  of  such  advertisements, 
there  is  no  constitutional  question  so  far  as  the  mails  are 
concerned. 

The  use  of  the  mails  may  constitute  a  crime  against  the 
state,  but  the  Circuit  Court  of  Appeals  for  the  Fourth  Cir- 

44  See,  inter  alia,  Leisy  v.  Hardin,   135  U.   S.   100   (1890),  and 
Rhodes  v.  Iowa,  170  U.  S.  412  (1897). 

45  This  is  the  theory  of  the  Webb-Kenyon  Act.     See  my  papers, 
"  The  Power  of  the  States  over  Commodities  Excluded  by  Con- 
gress from  Interstate  Commerce,"  24  Yale  Law  Journal,  567  (May, 
1915),  and  "  State  Legislation  under  the  Webb-Kenyon  Act."    28 
Harvard  Law  Review,  225  (January,  1915). 

46  See  the  reasoning  in  State  v.  Delaye,  68  So.  993  (Ala.,  1915). 


POWER   OF   STATES   TO   INTERFERE   WITH    MAILS         147 

cuit  has  gone  much  farther  than  previous  decisions  and  in  a 
recent  case  declared:  "It  makes  no  difference  that  the 
United  States  Mail  was  used  for  the  solicitation  [of  orders 
for  intoxicating  liquors].  The  federal  government  does 
not  protect  those  who  use  its  mails  to  thwart  the  police 
regulations  of  a  state  made  for  the  conservation  of  the  wel- 
fare of  its  citizens.  The  use  of  the  mail  is  a  mere  incident 
in  carrying  out  the  illegal  act,  and  affords  no  more  protec- 
tion in  a  case  like  this  than  a  like  use  of  the  mails  to  promote 
a  criminal  conspiracy,  or  to  perpetrate  a  murder  by  poison, 
or  to  solicit  contributions  of  office  holders  in  violation  of 
the  civil  service  law,  or  to  obtain  goods  under  false  pre- 
tenses."47 

In  Adams  v.  The  People48 — the  case  probably  meant  but 
not  cited  by  the  last  clause  of  the  quotation — there  was  an 
indictment  for  obtaining  money  under  false  pretenses,  al- 
though the  defendant  was  a  resident  of  Ohio  and  had  never 
been  in  New  York.  So  also,  in  cases  referred  to  by  the 
Circuit  Court  of  Appeals,  the  solicitation  through  the  mails 
of  orders  for  intoxicating  liquors  has  been  punished  where 
the  matter  was  mailed  and  received  within  the  limits  of  the 
state  and  there  was  no  interstate  commerce  involved.49  But 
the  Supreme  Court  decisions  cited  by  the  Circuit  Court  of 
Appeals  simply  hold  that  Congress  may  make  the  use  of 
the  mails  a  crime  when  in  furtherance  of  a  purpose  to 
violate  federal  laws  and  are  obviously  not  precedents  for 
sustaining  the  West  Virginia  legislation.50 

Now,  the  sine  qua  non  of  forbidding  solicitation  by  means 
of  the  postoffice  is  that  the  sale  of  the  intoxicating  liquor 
is  itself  a  crime;  otherwise  the  state  could  have  an  unre- 
strained power  to  prescribe  the  purposes  for  which  the  mails 
might  be  used.  The  Circuit  Court  of  Appeals  evidently 
reasoned  on  this  basis  and  considered  as  constitutional  the 

47  West  Virginia  v.  Adams  Express  Co.,  219  Fed.  Rep.  794  (1915). 

«  i  N.  Y.  173  (1848). 

49Hayner  v.  State,  83  Ohio  St.  178  (1910).  See  also  Zinn  v. 
State,  83  Ark.  273,  114  S.  W.  227  (1908). 

50  U.  S.  v.  Thayer,  209  U.  S.  39  (1908),  and  In  re  Palliser,  136 
U.  S.  257  (1890). 


148  THE   POSTAL   POWER   OF    CONGRESS 

section  of  the  state  law  which  provides  that  "in  case  of  a 
sale  in  which  a  shipment  or  delivery  of  such  liquors  is  made 
by  a  common  or  other  carrier,  the  sale  thereof  shall  be 
deemed  to  be  made  in  the  county  wherein  the  delivery 
thereof  is  made  by  such  carrier  to  the  consignee,  his  agent, 
or  employee."  The  Court  held  that  such  a  regulation  was 
sanctioned  by  the  Webb-Kenyon  Act,51  although  admittedly 
invalid  if  not  thus  justified.  This  presents  a  question  that 
is  beyond  the  purview  of  the  present  study,  but  it  is  obvious 
that  if  the  sales  could  be  made,  then  the  solicitation  could 
not  be  made  a  crime ;  and  it  may  be  added,  parenthetically, 
that  the  Court  probably  erred  in  holding  that  the  sales  were 
forbidden. 

The  case  nearest  in  point — Rose  Co.  v.  State52 — is  not 
cited  by  the  Circuit  Court's  opinion.  The  defendant  cor- 
poration in  Tennessee  mailed  circulars  advertising  liquors 
to  residents  of  Barton  County,  Ga.  The  Georgia  law  for- 
bade solicitations  where  it  was  unlawful  to  sell,  but  the 
Supreme  Court  of  Georgia  held  that  shipments  could  be 
made  from  without  the  state  under  the  protection  of  the 
commerce  clause,  and  it  could  not,  therefore,  be  a  crime  to 
use  a  federal  agency  in  furtherance  of  a  purpose  that  was 
sanctioned  by  the  Federal  Constitution. 

It  may  be  said,  then,  that  the  use  of  the  mails  may  be 
penalized  only  when  in  furtherance  of  a  purpose  that  is  un- 
lawful; nor  can  it  be  argued — as  was  done  with  consider- 
able force  by  the  late  James  C.  Carter  against  the  exclusion 
of  lottery  tickets  from  the  mails53 — that  the  state  may  punish 
only  when  the  purposes  are  mala  in  se  and  not  when  merely 
mala  prohibita.  If  the  state  has  the  power,  it  may  define 
"  unlawful,"  but  punishment  cannot  take  place  if  the  act 

51 37  Stat.  L.  699.  For  a  further  discussion  of  this  point  see  my 
paper,  "  Unlawful  Possession  of  Intoxicating  Liquors  and  the  Webb- 
Kenyon  Act,"  16  Columbia  Law  Review,  I  (1916). 

52  133  Ga.  353,  65  S.  E.  770,  36  L.  R.  A.  (n.  s.)  443  (1909),  and 
note,  which  says  that  the  case  is  one  primae  impressionis.    It  should 
be  said  that  the  decision  in  the  Court  of  Appeals  was  contra.     See 
4  Ga.  App.  588,  62  S.  E.  117  (1908). 

53  In  re  Rapier,  143  U.  S.  no  (1892). 


POWER   OF   STATES   TO   INTERFERE   WITH    MAILS         149 

sought  to  be  effected  by  the  use  of  the  mails  is  permitted 
by  state  law,  or  if  the  inhibition  is  invalid,  as  is,  it  would 
seem,  the  case  with  the  West  Virginia  legislation.  Finally, 
it  is  difficult  to  see  how  the  state  may  forbid  anything  but 
direct  solicitation.  A  magazine  or  newspaper  proprietor 
who  publishes  the  advertisements  does  not  use  the  mails  for 
the  purpose  of  consummating  a  crime,  and  the  advertiser 
does  not  use  the  mails  at  all.  The  solicitation,  therefore, 
must  be  direct.54 

54  To  make  the  record  complete  it  should  be  added  that  the  federal 
courts  have  exclusive  jurisdiction  of  all  offenses  embraced  by  stat- 
ute, committed  in  a  postoffice  owned  by  the  United  States  or  juris- 
diction over  which  has  been  ceded  by  the  state.  Battle  v.  U.  S.,  209 
U.  S.  36  (1008).  But  the  fact  that  a  train  is  engaged  exclusively 
in  carrying  the  United  States  mail  does  not  preclude  the  jurisdiction 
of  a  state  court  of  a  prosecution  for  the  murder  of  an  engineer, 
committed  by  derailing  the  train.  Crossley  v.  California,  168  U.  S. 
640  (1898). 


CHAPTER  VI 
THE  EXTENSION  OF  FEDERAL  CONTROL  OVER  POSTROADS 

Federal  Ownership  of  Railroads. — In  an  address  at  In- 
dianapolis on  May  30,  1907,  President  Roosevelt  discussing 
the  necessity  for  further  congressional  regulation  of  rail- 
way companies,  declared  that,  "  in  so  far  as  the  common  car- 
riers also  transport  the  mails,  it  is,  in  my  opinion,  probable 
that  whether  their  business  is  or  is  not  interstate,  it  is  to 
the  same  extent  subject  to  federal  control,  under  that  clause 
of  the  Constitution  granting  to  the  national  government 
power  to  establish  postroads,  and  therefore  by  necessary 
implication  power  to  take  all  action  necessary  in  order  to 
keep  them  at  the  highest  point  of  efficiency/'1 

The  placing  of  such  a  construction  upon  the  postroads 
clause  aroused  a  storm  of  criticism,  but,  in  the  main,  Presi- 
dent Roosevelt  was  correct  in  his  assertion  of  congressional 
authority.  Municipal  streets  used  by  mail  carriers  or 
wagons  are  postroads  and  federal  control  exists  to  the  ex- 
tent of  insuring  safe  passage  of  the  mail  and  prohibiting 
private  competition;  by  the  rural  free  delivery  system, 
moreover,  state  wagon  roads  are  under  federal  authority  to 
the  same  extent.  That  much  has  been  made  evident  by  the 
preceding  discussion. 

As  to  common  carriers  between  the  states,  congressional 
regulation  has  been  very  largely  based  upon  the  commerce 
clause  of  the  Federal  Constitution,  and  the  transportation 

1  The  Roosevelt  Policy,  vol.  ii,  p.  486.  In  his  Provincetown 
address  (August  20,  1907)  President  Roosevelt  returned  to  the 
same  theme,  saying:  "I  believe,  furthermore,  that  the  need  for 
action  is  most  pressing  as  regards  those  corporations  which,  be- 
cause they  are  common  carriers,  exercise  a  quasi-public  function; 
and  which  can  be  completely  controlled,  in  all  respects,  by  the  fed- 
eral government  by  the  exercise  of  the  power  conferred  under  the 
interstate  commerce  clause,  and,  if  necessary,  under  the  post-road 
clause  of  the  Constitution."  Ibid.,  p.  564. 

150 


EXTENSION   OF   FEDERAL   CONTROL   OVER   POSTROADS  15! 

of  the  mails  has  been  a  secondary,  not  primary,  ground  to 
justify  the  authority  exerted.  This  commercial  power  does 
not  extend  to  intrastate  undertakings,  but  if  these  were  con- 
cerned with  furnishing  postal  facilities  they  could  be  brought 
under  federal  control.  This  doctrine,  however,  should  be 
carefully  qualified  so  as  not  to  assert  a  right  in  Congress  to 
assume  general  supervision,  for  example,  of  municipal  trac- 
tion companies,  an  incidental  function  of  which  is  to  carry 
the  mails.  The  control  could  be  exerted  only  so  far  as  was 
reasonably  necessary  to  insure  the  safe,  speedy,  and  unob- 
structed transportation  of  government  property. 

This  control,  as  the  Debs2  case  made  clear,  is,  in  the  case 
of  interstate  carriers  at  least,  and  by  parity  of  reasoning  in 
the  case  of  intrastate  undertakings  also,  not  confined  to 
mere  legislative  rules,  enforceable  in  the  courts,  but  the 
executive  power  may  remove  obstructions  to  the  carriage 
of  the  mails.  The  national  government  is  charged  "with 
the  duty  of  keeping  those  highways  of  interstate  commerce 
free  from  obstruction,  for  it  has  always  been  recognized  as 
one  of  the  powers  and  duties  of  a  government  to  remove 
obstructions  from  the  highways  under  its  control."  On  this 
power  rests,  in  large  part,  at  least,  the  act  of  October  i, 
i888,3  providing  for  arbitration  between  railroad  companies 
and  their  employees  and  subsequent  acts  for  the  same  pur- 
pose. The  full  power  has  not  yet  been  exerted ;  it  extends 
to  the  compulsory  settlement  of  such  disputes  (subject  to 
the  limitations  of  the  Thirteenth  Amendment),4  and  to  the 
enforcement  by  federal  authority  of  such  regulations  as  may 
be  necessary  to  remove  obstructions  and  insure  the  carriage 
of  the  mails  without  delay,  even  in  the  case  of  streets  within 
a  town  and  with  reference  to  municipal  traction  companies. 

It  is  no  longer  open  to  doubt  that  the  federal  government, 
under  its  right  of  eminent  domain,  upon  the  payment  of 
adequate  compensation  judicially  determined,  may  compel 
service  from  railroads  by  which  existing  terms  for  the  car- 

2iS8U.  8.564  (1895). 

3  25  Stat.  L.  501. 

4  See  2  Willoughby  on  the  Constitution,  855. 


152  THE   POSTAL   POWER   OF   CONGRESS 

riage  of  the  mails  may  have  been  deemed  unsatisfactory. 
This  may  be  done  either  by  assuming  the  temporary  man- 
agement of  the  roads  for  such  a  purpose,  or  by  enforcing 
criminal  provisions  against  obstructing  or  delaying  the 
mails.  While  such  a  power  has  not  been  exercised,  it  cer- 
tainly exists.5 

But  the  Senate  Committee  which  in  1874  declared  that  the 
government  could  thus  compel  the  transportation  of  the 
mails,  went  still  further  and  maintained  that  Congress  could 
"take  absolutely,  on  paying  just  compensation  therefor, 
without  the  consent  either  of  the  owner  or  of  the  state 
within  which  such  road  may  be,  any  railroad,  its  rolling 
stock  and  equipments,  within  the  United  States  for  the  pub- 
lic use  and  transportation  over  the  same  of  the  United 
States  mails," — an  advanced  position  for  this  period  when 
Congress  had  as  yet  attempted  slight  regulation  of  the  rail- 
roads. 

It  should  require  but  little  argument,  I  think,  to  show  that 
if  Congress  decides  to  nationalize  the  railways  of  the  coun- 
try it  may  constitutionally  do  so  under  its  power  to  establish 
postroads.  Federal  charters  to  railroads  and  bridge  com- 
panies have  been  pitched  upon  the  postal,  commercial,  and 
war  powers;  they  have  granted  rights  of  way  through  the 
states,  immunity  from  taxation,  powers  of  eminent  domain, 
and  the  right  of  resort  to  the  federal  courts  on  the  ground 
of  federal  citizenship.  Congress  has,  moreover,  the  right 
of  eminent  domain  even  for  patriotic  purposes, — to  pre- 
serve the  Gettysburg  battlefield, — a  much  more  remote  pub- 
lic purpose  than  that  of  establishing  postal  facilities  under 
the  specific  authorization  in  the  Constitution.6 

In  Osborn  v.  The  Bank  of  the  United  States,7  it  was 
urged  upon  the  Supreme  Court  that  the  bank  was  not  an 
instrument  of  the  government  and  a  distinction  was  drawn 
between  it  and  an  agency  for  which  provision  was  made  in 

5  43d  Cong.,  ist  Sess.,  Senate  Rept.  No.  478. 

6  California  v.  Pacific  Railroad  Companies,  127  U.  S.  I   (1887); 
U.  S.  v.  Gettysburg  Electric  Co.,  160  U.  S.  668  (1896). 

7  9  Wheat.  738  (1824). 


EXTENSION   OF   FEDERAL    CONTROL   OVER   POSTROADS   153 

the  Constitution.  "  The  postoffice  is  established  by  the  gen- 
eral government,"  said  counsel.  "  It  is  a  public  institu- 
tion. The  persons  who  perform  its  duties  are  public  offi- 
cers. No  individual  has  or  can  acquire  any  property  in  it. 
For  all  services  performed  a  compensation  is  paid  out  of 
the  national  treasury ;  and  all  money  received  upon  account 
of  its  operations  is  public  property."  The  business  "is  of 
a  public  character  and  the  charge  of  it  expressly  conferred 
upon  Congress  by  the  Constitution."8  This  distinction  be- 
tween the  public  nature  of  postal  facilities  and  the  private 
character  of  much  of  the  business  done  by  the  bank  was 
urged  to  show  that  the  latter  was  subject  to  taxation  by  the 
state. 

To  this  argument  Chief  Justice  Marshall  replied  that  if 
the  premises  were  true,  the  conclusion  would  be  inevitable. 
But  there  was  a  political  connection  between  the  bank  and 
the  government  and  "  Congress  was  of  the  opinion  that  these 
faculties  [of  doing  private  business]  were  necessary  to  en- 
able the  bank  to  perform  the  services  which  are  exacted 
from  it,  and  for  which  it  was  created.  .  .  .  That  the  exer- 
cise of  these  faculties  greatly  facilitates  the  fiscal  operations 
of  the  government  is  too  obvious  for  controversy :  and  who 
will  venture  to  affirm  that  the  suppression  of  them  would 
not  materially  affect  these  operations,  and  essentially  im- 
pair, if  not  totally  destroy,  the  utility  of  the  machine  to  the 
government?"  If  the  private  business  engaged  in  has  the 
result  of  making  the  corporation  "  a  more  fit  instrument  for 
the  purposes  of  the  government  than  it  otherwise  would  be," 
then  "  the  capacity  to  carry  on  this  trade  is  a  faculty  indis- 
pensable to  the  character  and  objects  of  the  institution." 

There  can  be  no  question  of  the  right  of  the  federal  gov- 
ernment itself  to  construct  highways  for  the  transportation 
of  the  mail  and  to  charge  tolls  for  their  use ;  nor  can  there 
be  any  doubt  of  its  power  to  own  and  operate  carriers,  and 
incidentally  to  engage  in  business  of  a  private  nature  if 
this  increases  the  efficiency  of  the  governmental  agency. 

89  Wheat.  785  (1824). 


154  THE   POSTAL   POWER   OF   CONGRESS 

Even  the  fact  that  these  private  undertakings,  disassociated 
from  the  carriage  of  the  mails,  would  be  by  far  the  most 
important,  would  make  no  difference,  according  to  the  rule 
as  announced  by  Chief  Justice  Marshall.  On  this  theory, 
moreover,  can  be  justified  the  assumption  by  the  federal 
government  of  the  functions  of  a  bank  and  common  carrier, 
through  the  postal  savings  and  money  order  systems,  and 
the  parcel  post,  even  though  these  activities  can  also  be  sup- 
ported as  proper  elements  of  a  postal  power  as  it  is  inter- 
preted in  other  countries. 

If,  therefore,  the  federal  government  is  competent  to  es- 
tablish postal  facilities  and  use  them  for  ancillary  yet  help- 
ful purposes,  there  is  no  reason  why  it  may  not  exercise  its 
power  of  eminent  domain  and  take  possession  of  any  or  all 
agencies  now  used  in  the  transportation  of  the  mails,  upon 
the  payment  of  just  compensation;  own  and  operate  these 
agencies,  use  them  to  carry  the  mails,  and  to  perform  all 
other  functions  which  would  "greatly  facilitate  the  fiscal 
operations  of  the  government."  In  this  would,  of  course, 
be  included  the  smaller  power  of  creating  a  corporation,  per- 
haps owned  in  part  by  the  government,  to  take  over  and 
operate  the  railroads  of  the  country  for  the  same  purposes. 
The  connection  between  such  a  corporation  and  the  govern- 
ment would  be  political  and  public  as  Marshall  pointed  out, 
but  it  would  be  created  to  carry  out  a  power  specifically  men- 
tioned in  the  Constitution,  and  its  public  nature  would 
therefore  be  much  more  apparent.  There  is  thus  an  error 
of  understatement  when  it  is  urged  that  "no  valid  distinc- 
tion can  be  drawn  between  the  vital  necessity  of  the  right  to 
trade  in  money  to  a  fiscal  instrumentality  of  the  govern- 
ment, and  the  right  to  trade  in  transportation  to  a  transpor- 
tation instrumentality  of  the  government."9 

It  is  an  arguable  proposition  that  such  a  purpose  could  be 
accomplished  under  the  commercial  power  which  is  simply 
that  of  "regulation."  By  many  the  opinion  is  held  that 
this  of  itself  is  sufficient  to  give  Congress  the  right  to  compel 

9  Farrar,  The  Post  Road  Power  (Hearings  before  Committee  on 
Interstate  Commerce,  United  States  Senate,  626.  Congress,  p.  1498  ff). 


EXTENSION   OF   FEDERAL   CONTROL   OVER   POSTROADS   155 

industrial  corporations  doing  an  interstate  business  to  secure 
federal  charters.  The  constitutionality  of  a  law  to  compel 
interstate  railroads  to  incorporate  under  the  commerce  clause 
is  even  less  doubtful,  and  the  Supreme  Court  has  upheld 
the  exercise  of  the  commercial  power  in  condemning  the 
property  of  a  state  corporation  organized  to  improve  navi- 
gation, just  compensation  including  the  value  of  the  fran- 
chise which  was  destroyed.10  Federal  incorporation,  then, 
may  be  required  on  the  ground  that  it  is  necessary  for  the 
efficient  regulation  of  the  carriers.  On  the  other  hand,  the 
postal  clause  gives  Congress  the  right  to  establish  instru- 
mentalities for  the  transportation  of  the  mails,  and  the  as- 
sumption of  control  or  ownership  under  this  grant  of  power 
is  more  surely  within  the  rule  as  laid  down  by  Marshall  in 
Osborn  v.  The  Bank  of  the  United  States. 

In  1792  the  proposal  was  made  in  Congress  that  the  pro- 
prietors of  mail  stages  be  permitted  to  carry  passengers, 
but  the  motion  was  lost,  on  the  ground  that  under  the  postal 
clause  Congress  did  not  provide  the  necessary  authority.11 
It  is  true,  also,  that  the  framers  of  the  Constitution  did  not, 
because  they  could  not,  contemplate  the  taking  over  by  Con- 
gress of  the  railways  of  the  country.  And,  as  the  preced- 
ing discussion  has  attempted  to  show,  during  the  early  days 
of  legislative  activity  under  the  postroads  clause,  the  con- 
sent of  the  states  was  required  for  construction  within 
their  borders,  and  they  acceded  in  one  form  or  another  to 
several  of  the  acts  granting  federal  charters.12  But,  as  the 
Supreme  Court  of  the  United  States  has  said  in  language 
already  quoted,  the  powers  of  Congress  "are  not  confined 
to  the  instrumentalities  of  commerce  or  of  the  postal  service 
known  or  in  use  when  the  Constitution  was  adopted,  but 
they  keep  pace  with  the  progress  of  the  country."  This, 
coupled  with  the  right  of  eminent  domain,  is,  it  is  sub- 
mitted, sufficient  to  enable  the  national  government,  either 

10  Monongahela  Navigation  Co.  v.  U.  S.,  148  U.  S.  312  (1893). 

11  Annals  of  2d  Congress,  pp.  303-309. 

12  See  Prentice,  Federal  Power  over  Corporations  and  Carriers, 
p.  152. 


156  THE   POSTAL   POWER   OF   CONGRESS 

directly  or  through  a  federally  chartered  corporation,  to 
take  over  and  operate  the  railroads  of  the  country  for  the 
carriage  of  the  mails,  with  the  power  of  engaging  in  the 
transportation  of  freight  or  passengers,  to  the  extent  that 
Congress  may  desire.13 

Postal  Telegraphs  and  Telephones. — The  case  last  cited 
is  ample  authority  for  Congress  to  take  over  and  operate 
the  telegraph  and  telephone  systems  of  the  country,  for  the 
Supreme  Court  made  its  pronouncement  in  upholding  the 
act  of  July  24,  i866,14  "to  aid  in  the  construction  of  tele- 
graph lines,  and  to  secure  to  the  government  the  use  of  the 
same  for  postal,  military  and  other  purposes."  The  act, 
among  other  things,  gave  companies  complying  with  its 
terms  the  right  to  erect  their  poles  and  string  their  wires 
along  any  military  or  post  road,  and  the  Supreme  Court  de- 
clared void  a  state  statute  which  attempted  to  give  exclusive 
rights  to  a  local  company. 

By  the  third  section  of  the  congressional  act,  it  was  pro- 
vided that  "  the  United  States  may,  at  any  time  after  the 
expiration  of  five  years  from  the  date  of  the  passage  of 
this  act,  for  postal,  military  or  other  purposes,  purchase  all 
the  telegraph  lines,  property  and  effects  of  any  or  all  of  said 
companies  at  an  appraised  value,  to  be  ascertained  by  five 
competent,  disinterested  persons,  two  of  whom  shall  be  se- 
lected by  the  postmaster  general  of  the  United  States,  two 
by  the  company  interested,  and  one  by  the  four  so  previously 
selected."  The  United  States  therefore  reserved  to  itself 
the  power  which  it  would  otherwise  have  had, — that  of 
eminent  domain  in  respect  to  telegraph  facilities.  In  his 
report  for  1913,  the  postmaster  general  said : 

"  A  study  of  the  constitutional  purposes  of  the  postal  es- 
tablishment leads  to  the  conviction  that  the  Post  Office  De- 

13  Pensacola  Telegraph  Co.  v.  Western  Union  Telegraph  Co.,  96 
U.  S.  i  (1878).  Congress  may  authorize  the  secretary  of  war  to 
lease  upon  terms  agreed  upon  any  excess  of  water  power  which 
results  from  the  conservation  of  the  flow  of  a  river,  and  the  works 
which  the  government  may  construct.  U.  S.  v.  Chandler-Dunbar 
Water  Power  Co.,  229  U.  S.  53  (1913). 

"37  Stat.  L.  560. 


EXTENSION   OF   FEDERAL   CONTROL   OVER   POSTROADS 

partment  should  have  control  over  all  means  of  the  com- 
munication of  intelligence.  The  first  telegraph  line  in  this 
country  was  maintained  and  operated  as  a  part  of  the  postal 
service,  and  it  is  to  be  regretted  that  Congress  saw  fit  to 
relinquish  this  facility  to  private  enterprise.  The  monopo- 
listic nature  of  the  telegraph  business  makes  it  of  vital  im- 
portance to  the  people  that  it  be  conducted  by  unselfish  in- 
terests, and  this  can  be  accomplished  only  through  govern- 
ment ownership."  If  Congress  decides  to  take  over  these 
facilities,  its  action  will  be  clearly  within  the  postal  power.15 

15  For  an  account  of  proposals  in  Congress  to  take  this  action,  a 
history  of  its  recommendation  by  successive  postmasters  general, 
and  much  valuable  statistical  information  concerning  the  operation 
of  the  American  privately  owned,  and  the  foreign  publicly  owned, 
telegraph  and  telephone  systems,  see  "  Government  Ownership  of 
Electrical  Means  of  Communication,"  63d  Congress,  2d  Sess.,  Senate 
Doc.  No.  399. 


CHAPTER  VII 

THE  EXTENSION  OF  FEDERAL  CONTROL  THROUGH  EXCLU- 
SION FROM  THE  MAILS 

It  has  already  been  indicated  that,  while  the  postal  power 
of  Congress  is  plenary,  extending  to  the  classification  and 
exclusion  of  articles  presented  for  transmission  through  the 
mails,  it  is  not  without  limits ;  that  its  exercise  is  restricted 
by  provisions  found  in  the  Constitution  itself, — the  guar- 
antees of  a  free  press  and  immunity  from  unreasonable 
searches  and  seizures.  There  is,  moreover,  a  further  im- 
portant limitation  in  that  an  arbitrary  refusal  of  postal  facili- 
ties would  seem  to  be  a  denial  of  due  process  of  law. 

The  Supreme  Court  of  the  United  States  has  not  yet 
been  called  upon  to  set  any  limit  to  congressional  action 
under  this  clause ;  it  has  thus  far  upheld  every  law  restrict- 
ing the  use  of  the  postoffice.  But  it  should  be  remembered 
in  the  discussion  which  follows  that  all  existing  exclusions 
from  the  mails  can  be  justified  as  partaking  of  the  nature  of 
police  regulations;  the  prohibited  articles  are  either  in- 
herently injurious,  inimical  to  the  health,  safety  and  well 
being  of  recipients,  or  the  use  of  the  mails  is  denied  because 
it  would  be  in  furtherance  of  a  design  that  is  condemned 
by  moral  considerations  or  is  against  public  policy. 

That  this  Index  Expurgatorius  will  be  extended  may 
be  taken  for  granted.  It  is  in  the  nature  of  police  regula- 
tions that  they  expand  more  inclusively  and  rigorously.  For 
example,  in  1912  Congress  excluded  from  the  mails  moving 
picture  films  of  prize  fights.1  At  the  third  session  of  the 
Sixty-third  Congress,  moreover,  bills  were  introduced  and 
urged  to  deny  absolutely  the  use  of  the  mails  to  any  person 
who,  in  the  opinion  of  the  postmaster  general,  "is  engaged 

1 37  Stat.  L.  240. 

158 


EXTENSION   THROUGH    EXCLUSION    FROM    MAILS        159 

or  represents  himself  as  engaged  in  the  business  of  publish- 
ing "  any  books  or  pamphlets  of  an  indecent,  immoral,  scur- 
rilous or  libelous  character.  No  letter,  packet,  parcel,  news- 
paper, book  or  other  thing,  said  one  bill,  "  sought  to  be 
sent  through  the  postoffice  by  or  on  behalf  or  to  or  on 
behalf  of  such  person  shall  be  deemed  mailable  matter,  and 
the  postmaster  general  shall  make  the  necessary  rules  and 
regulations  to  exclude  such  nonmailable  matter  from  the 
mails."2  The  proposed  legislation  was  aimed  at  certain 
publications  devoted  to  the  unrestrained,  defamatory  and 
often  indecent  criticism  of  particular  religious  denomina- 
tions and  their  clergy. 

The  constitutionality  of  this  legislation,  however,  is  open 
to  serious  doubt.  There  can,  of  course,  be  no  question  as 
to  the  impairment  of  religious  freedom,  for,  while  this  re- 
quires freedom  of  attack,  it  cannot  "justify  the  violation  of 
public  order  and  common  decency  " ;  or,  as  put  by  another 
authority,  "  the  prohibition  does  not  prevent  Congress  from 
penalizing  the  commission  of  acts,  which,  although  justified 
by  the  tenets  of  a  religious  sect,  are  socially  or  politically 
disturbing,  or  are  generally  reprobated  by  the  moral  sense 
of  civilized  communities."3  Nor  is  the  objection  that  the 
freedom  of  the  press  would  be  impaired,  since,  admitting 
that  a  denial  of  postal  facilities  would  be  an  impairment  of 
the  liberty  of  publication,  the  federal  guarantee  does  not 
include  the  right  to  publish  scurrilous  or  libelous  utter- 
ances on  matters  of  private  concern ;  or,  to  take  Hamilton's 
test,  there  is  no  publication  of  truth,  with  good  motives  and 
for  justifiable  ends.4 

If  the  proposed  legislation  simply  made  such  matter  non- 
mailable and  penalized  any  attempt  to  use  the  postofiice  for 
its  carriage,  it  would  probably  be  free  from  objection.  But 
under  the  bill  quoted  above,  if  it  was  established  that  a 

2  See  Exclusion  of  Certain  Publications  from  the  Mails,  p.  3  ff. 
(Hearing  before  the  Committee  on  the  Postoffice  and  Postroads, 
House  of  Representatives,  63d  Cong.,  3d  Sess.)- 

3  Freund,  Police  Power,  p.  509 ;  2  Willoughby  on  the  Constitu- 
tion, 841. 

4  Schofield,  Freedom  of  the  Press  in  the  United  States,  p.  90. 


I6O  THE   POSTAL   POWER  OF   CONGRESS 

person  made  a  practice  of  sending  such  matter  through 
the  mails,  the  postmaster  general  would  have  the  absolute 
authority  arbitrarily  to  deny  him  facilities  for  all  his  mail 
matter,  much  of  which  would  be  admittedly  innocuous ;  and 
whether,  if  the  objectionable  practices  were  suspended,  the 
person  would  again  be  permitted  to  make  use  of  the  govern- 
mental agency,  would  depend  on  the  discretion  of  the  post- 
master general.  This  official's  authority  would,  in  effect, 
be  to  punish  for  acts  not  made  criminal  by  Congress.  Such 
legislation  would  for  this  reason  seem  unconstitutional  as 
well  as  ill-considered. 

But  this  exclusion  is  in  a  class  by  itself.  It  is  an  attempt 
to  reach  effectively  an  evil  over  which  there  is  admittedly 
some  federal  control,  for  Congress  may  prevent  the  trans- 
mission of  scurrilous  papers.  The  objection  is  to  the 
method  of  exercise  rather  than  to  the  existence  of  the  power. 
Of  a  different  character  is  the  strongly  urged  proposal  that 
congressional  control  of  the  mails  may  be  used  as  a  valid 
means  to  compel  the  performance  or  non-performance  of 
certain  acts  by  persons,  over  whom  there  exists  no  direct 
federal  authority.  In  other  words,  it  is  contended  that 
Congress  has  a  plenary  and  arbitrary  power  to  determine 
who  shall  use  the  mails  and  what  articles  shall  be  carried, 
and  therefore  may  impose  any  antecedent  conditions,  no 
matter  how  onerous  or  remote,  upon  the  enjoyment  of 
postal  facilities.  With  the  ever  increasing  frequency  and 
importance  of  problems  demanding  a  solution  by  the  federal 
government  in  the  absence  of  effective,  and  in  some  cases 
even  attempted,  settlement  by  the  states,  Congress  is  under 
the  necessity  of  casting  about  for  indirect  methods  of  exert- 
ing control,  since  direct  action  would  be  unconstitutional. 
The  use  for  this  purpose  of  the  taxing  and  commercial 
powers  has  in  some  instances  been  made,  and  in  others 
is  very  strongly  urged.  It  is  also  argued  that  Congress 
may  refuse  corporations,  to  whose  size,  organization,  or 
activities,  it  objects,  the  right  to  sue  in  federal  courts  and 
that  national  banks  may  be  ordered  not  to  receive  their 


EXTENSION   THROUGH    EXCLUSION    FROM    MAILS        l6l 

deposits.  In  asking,  therefore,  whether  it  is  constitutional 
for  Congress  to  exert  such  indirect  control  under  the  cloak 
of  regulating  the  mails,  we  will  merely  consider  one  phase 
of  the  larger  subject  of  indirect  government. 

Such  an  exercise  of  power  over  the  mails  has  been  advo- 
cated to  secure  corporate  publicity.  "  Congress,"  says  one 
who  is  in  favor  of  such  extension  of  federal  control,  "by 
regulating  the  use  of  the  mails  and  channels  of  interstate 
commerce,  may  compel  every  corporation  engaged  in  any 
business,  whether  interstate  or  not,  to  give  publicity  to  its 
corporate  affairs,  by  legislation  denying  the  use  of  the  mails 
and  the  instruments  of  interstate  commerce  for  the  trans- 
mission of  any  matter  concerning  the  affairs  or  business  of 
any  corporation  that  fails  to  make  and  file  reports  of  the 
fullest  nature  concerning  its  organization  and  business,  such, 
for  example,  as  are  already  exacted  from  interstate  carriers 
under  the  Interstate  Commerce  Act.  Such  legislation  would 
be  valid  and  enforceable."5 

It  has  been  suggested  in  Congress6  that  an  effective  puni- 
tive method  of  dealing  with  monopolistic  corporations  would 
be  to  deny  them  postal  facilities.7  If  such  corporations  were 
violating  the  Sherman  Act  or  were  otherwise  outlawed  by 
valid  legislation,  Congress  would  have  the  right  to  deny 
them  the  use  of  the  mails,  since  it  would  be  absurd  for  the 
general  government  to  aid,  through  its  instrumentalities, 
persons  or  corporations  violating  laws  which  it  had  passed. 
An  illustrative  case  is  afforded  by  the  provision  of  the 
Panama  Canal  Act  of  August  24,  1912,  which  says  that  no 

5  Pam,  "  Powers  of  Regulation  Vested  in  Congress,"  24  Harvard 
Law  Review,  77  (December,  1910). 

6  As   stated  by  Senator  Newlands :   "  Congress   can  prohibit  the 
use  of  the  mails  by  any  organization  which  it  considers  unlawful  or 
injurious  to  the  public  welfare.     It  can,  therefore,  declare  that  any 
combination  organized  for  the  purpose  of  monopolizing  the  manu- 
facture, production  or  sale  of  any  article  of  commerce,  or  for  the 
purpose  of  preventing  competition  is  illegal,   and  can   forbid  and 
prohibit  the  use  of  the  mails  of  the  United  States  in  aid  of  such 
business."    33   Cong.   Rec.    (App.),  p.  675.     See  also   Remarks  of 
Lanham,  33  Cong.  Rec.,  p.  6324. 

7  This  was  rejected  by  a  House  Committee  on  the  ground  that  it 
was  inadequate.     See  56th  Cong.,  1st  Sess.,  House  Rept.  No.  1501. 

ii 


1 62  THE   POSTAL   POWER  OF   CONGRESS 

vessel  owned  by  any  company  doing  business  in  violation 
of  any  of  the  acts  of  Congress  relating  to  interstate  com- 
merce "  shall  be  permitted  to  enter  or  pass  through  said 
canal."8 

But  it  is  a  different  proposition  to  urge  that  Congress  may 
deny  the  use  of  the  mails  in  order  to  compel  corporate 
publicity,  when,  if  the  legislation  directly  commanded  com- 
pliance, it  would  be  clearly  ultra  vires.  Thus,  the  Pujo 
Money  Trust  Committee  proposed  "  that  Congress  prohibit 
the  transmission  by  the  mails  or  by  telegraph  or  telephone 
from  one  state  to  another  of  orders  to  buy  or  sell  or  quota- 
tions or  other  information  concerning  transactions  on  any 
stock  exchange,  unless  [among  other  conditions]  such  ex- 
change shall  ( I )  be  a  body  corporate  of  the  state  or  territory 
in  which  it  is  located."9  This  proposal  was  based  upon  the 
conclusion  of  a  majority  of  the  committee  that  "  Congress 
has  power  to  prevent  the  use  of  the  mails  to  disseminate 


8  37  Stat.  L.  560  (sec.  11).     See  also  Mr.  Adamson's  bill,  H.  R. 
9576,  63d  Cong.,  2d  Sess.  (December  i,  1913). 

9  Majority  Report  of  the  Committee  Appointed  to  Investigate  the 
Concentration    of    Control    of    Money    and    Credit    (February   28, 
1913) »  P-   162.    A  bill  embodying  these  recommendations  is  given 
on  p.  170.    It  denies  the  use  of  the  mails  to  any  stock  exchange, 
"  unless  such  exchange  has  been  incorporated  under  the  laws  of  the 
state  or  territory  at  which  its  business  is  conducted,  or  unless  the 
charter  and  by-laws  of  such  exchange  or  the  law  under  which  it  is 
organized  shall  contain  regulations  and  prohibitions  satisfactory  to 
the  Postmaster  General  safeguarding  the  transactions  of  such  ex- 
change, the  character  of  the  securities  dealt  in  thereon,  the  genuine- 
ness of  the  quotations  thereof,  and  all  other  information  concern- 
ing such  transactions  that  is  to  be  carried  through  the  mails,  and 
by  telegraph  and  telephone  beyond  the  limits  of  the  state  of  the 
organization  of  such  exchange  against  fraud  and  deceit  in  the  fol- 
lowing particulars":  These  require  publicity  as  to  the  assets  and 
stock  issues  of  a  corporation  before  its  securities  may  be  listed; 
an  annual  report  by  the  corporation  whose  securities  are  listed,  to 
the  secretary  of  the  exchange  and  the  postmaster  general,  giving  a 
detailed  statement  of  receipts,  expenses,  net  earnings,  salaries  and 
commissions  paid  to  officers  or  directors,  etc.;  prohibition  of  arbi- 
trary action  by  a  stock  exchange  in  striking  securities  from  its  list, 
of  artificial  manipulation  of  securities,  of  hypothecation  of  securities 
purchased  on  a  margin,  of  "  short-selling,"  etc.    The  bill  also  con- 
tains many  requirements  as  to  publicity.     For  a  discussion  of  the 
economic  features  of  the  Pujo  Committee's  proposals,   see  Regu- 
lation of  the  Stock  Exchange,  p.  585  ff.  (Hearings  before  the  Com- 
mittee on  Banking  and  Currency,  United  States  Senate,  63d  Cong., 
2d  Sess.). 


EXTENSION   THROUGH    EXCLUSION    FROM    MAILS        163 

quotations  or  other  information  concerning  transactions  on 
stock  exchanges  whose  facilities  are  used  for  purposes  of 
gambling  and  price  manipulation,  and  that  exercising  its 
wide  choice  of  means  to  that  end,  it  may  prohibit  the  trans- 
mission through  the  mails  of  any  information  relating  to 
transactions  on  exchanges  refusing  submission  to  regula- 
tions reasonably  adapted  to  preventing  the  objectionable 
practices."10 

The  question  arises  whether  such  an  exclusion  would  not 
violate  the  freedom  of  the  press,  since  newspapers  and  other 
publications  could  not  use  the  mails  if  they  contained  any 
information,  however  harmless  and  valuable,  concerning  any 
transactions  (to  which  Congress  might  have  no  objection) 
of  the  exchange  which  has  refused  to  accept  regulations 
which  the  general  government  had  no  power  directly  to 
impose.  Newspapers  would  be  unable  to  circulate  truth  on 
matters  of  public  concern  if  the  published  information  as 
to  stock  quotations,  although  harmless  in  its  nature,  con- 
cerned an  institution  whose  practices  Congress  was  indirectly 
attempting  to  check.  If  the  law  were  carefully  confined  to 
the  prohibition  of  the  circulation  of  publications  which  con- 
tained matter  relating  to  gambling  transactions,  there  would 
be  no  abridgment  of  the  guarantee  of  the  First  Amendment. 
The  exclusion  would  be  similar  to  that  of  lottery  advertise- 
ments, or  matter  designed  to  aid  in  defrauding  recipients. 
But  as  proposed  by  the  Pujo  Committee,  the  law  would,  at 
least  in  part,  if  not  as  a  whole,  operate  as  an  abridgment  of 
the  freedom  of  the  press. 

Apart  from  this  consideration,  however,  the  theory  of  the 
law,  differently  stated,  is  that  Congress,  under  its  power  to 
exclude  from  the  mails  gambling  contracts  and  matter  de- 
signed to  defraud  recipients,  may  go  farther  and  exclude 
harmless  matter  because  this  seems  a  necessary  and  ade- 
quate means  of  compelling  the  exchanges  to  take  out  state 
charters,  a  concession  thought  by  Congress  to  be  desirable 

10  Majority  Report,  p.  122. 


164  THE   POSTAL   POWER  OF   CONGRESS 

in  order  to  prevent  the  gambling  and  other  harmful  prac- 
tices, over  which  there  is  no  direct  national  control. 

Still  other  proposals  would  extend  federal  authority  in  a 
similar  manner.  It  is  urged,  for  example,  that  Congress 
prohibit  the  use  of  the  mails  by  fire  insurance  companies 
which  at  present  are,  by  means  of  the  postoffice,  able  to  do 
business  in  states  where  they  could  not,  if  they  used  local 
agents.11  And  to  give  a  third  example,  it  was  argued  that  an 
efficient  means  of  prohibiting  trading  in  cotton  futures  would 
be  to  deny  the  use  of  the  mails  for  the  furtherance  of  such 
transactions.12  The  extent  to  which  the  Supreme  Court  has 
thus  far  recognized  in  Congress  authority  of  this  character, 
is  only  to  sanction  the  refusal  to  lend  federal  aid,  by  fur- 
nishing postal  facilities  to  the  furtherance  or  consummation 
of  gambling  and  fraudulent  schemes. 

One  measure  of  a  character  somewhat  analogous  to  those 
proposals  which  we  have  been  considering,  has,  however, 
already  been  sustained  by  the  Supreme  Court  of  the  United 
States.  I  refer  to  the  recent  so-called  "  Newspaper  Publicity 
Law"  which  requires  publications  entered  as  second-class 
matter  (with  a  few  exceptions)  to  furnish  the  postoffice  de- 
partment with,  and  publish,  a  sworn  statement  giving  the 
names  and  addresses  of  the  owners,  editors,  and  business 
managers,  and,  in  the  case  of  daily  newspapers,  circulation 
figures.  It  is  provided  that  "  any  such  publication  shall  be 
denied  the  privileges  of  the  mail  if  it  shall  fail  to  comply 
with  the  provisions  of  this  paragraph  within  ten  days  after 
notice  by  registered  letter  of  such  failure."13 

11  See  S.  5664  63d  Cong.,  2d  Sess.  (May  26,  1914). 

12  See  Regulation  of  Cotton  Exchanges,  p.  310  ff.   (Hearings  be- 
fore   the    Committee    on    Agriculture,    House    of    Representatives 
(April,  1914)).     See  also  63d  Cong.,  2d  Sess.,  House  Rept  765.    It 
should  be  pointed  out  that  the  "  trading  in  futures  "  that  it  was 
desired  to  prohibit  was  in  the  nature  of  gambling  contracts  and 
had  come  under  the  ban  of  local  laws. 

13  37  Stat  L.  553.    A  separate  and  concluding  paragraph  provides : 
"  That  all  editorial  or  other  reading  matter  published  in  any  such 
newspaper,   magazine  or  periodical,   for   the  publication  of  which 
money  or  other  valuable  consideration  is  paid,  accepted,  or  prom- 
ised, shall  be  plainly  marked  'advertisement.'    Any  editor  or  pub- 
lisher printing  editorial  or  other  reading  matter  for  which  com- 


EXTENSION   THROUGH    EXCLUSION    FROM    MAILS        165 

As  claimed  in  the  defendants'  brief,  when  the  law  went 
before  the  Supreme  Court,  Congress  had,  in  effect,  at- 
tempted "  to  regulate  journalism."  Relying  upon  its  power 
over  the  postoffice,  Congress  had  threatened  those  publica- 
tions which  enjoy  second-class  rates  with  a  denial  of  this 
privilege  should  they  refuse  to  comply  with  the  conditions ; 
and  it  was,  moreover,  made  a  crime  to  continue  to  use  the 
mails  and  violate  the  stipulation  that  all  reading  matter  for 
the  publication  of  which  a  valuable  consideration  is  received, 
"  shall  be  plainly  marked  '  advertisement/  "  Such  regula- 
tions, without  any  reference  to  the  use  of  the  mails,  would 
be  obviously  outside  the  constitutional  power  of  Congress. 

By  a  narrow,  but  nevertheless  a  convincing  line  of  reason- 
ing, the  Supreme  Court,  through  Chief  Justice  White,  was 
able  to  justify  the  law  without  being  put  to  the  necessity  of 
making  any  definite  declaration  as  to  the  limits  to  which 
Congress  may  go  in  its  exercise  of  what,  lacking  a  better 
phrase,  we  may  call  "indirect  regulation  under  the  postal 
power." 

The  Court's  opinion  shows  that  in  the  classification  of 
mail  matter  there  has  been  no  attempt  at  uniformity  and 
that  periodical  publications  have  enjoyed  special  favors  by 
reason  of  legislative  adherence  to  what  has  been  described 
as  the  "historic  policy  of  encouraging  by  low  postal  rates 
the  dissemination  of  current  intelligence."14  It  is  shown 
that  as  a  condition  precedent  to  being  "  entered  as  second 
class  mail  matter"  and  enjoying  the  low  rates  which  are 
maintained  at  a  loss,  the  government  demands  an  answer 
to  a  score  of  questions  concerning  ownership,  editorial 

pensation  is  paid,  accepted,  or  promised,  without  so  marking  the 
same,  shall,  upon  conviction  in  any  court  having  jurisdiction,  be 
fined  not  less  than  fifty  dollars  ($50)  nor  more  than  five  hundred 
dollars  ($500)." 

14  Report  of  the  Commission  on  Second-Class  Mail  Matter,  p. 
143.  In  his  message  of  February  22,  1912,  transmitting  this  report 
to  Congress,  President  Taft  said :  "  The  findings  of  the  commission 
confirm  the  view  that  the  cost  of  handling  and  transporting  second- 
class  mail  matter  is  greatly  in  excess  of  the  postage  paid,  and  that 
an  increase  in  the  rate  is  not  only  justified  by  the  facts,  but  is 
desirable." 


1 66  THE   POSTAL   POWER  OF   CONGRESS 

direction,  advertising  discrimination,  specimen  copies,  and 
circulation.  To  the  Third  Assistant  Postmaster  General  is 
given  the  authority  of  accepting  or  rejecting  applications  of 
entry  at  the  second-class  rate.15  The  Supreme  Court 
simply  considered  the  law  as  laying  down  new  conditions, 
compliance  with  which  will  continue  the  right  "to  enjoy 
great  privileges  and  advantages  at  the  public  expense."  In 
its  opinion  the  Court  says  : 

"  As  the  right  to  consider  the  character  of  the  publication 
as  an  advertising  medium  was  previously  deemed  to  be 
incidental  to  the  exercise  of  the  power  to  classify  for  the 
purpose  of  the  second  class  mail,  it  is  impossible  in  reason  to 
perceive  why  the  new  condition  as  to  marking  matter, 
which  is  paid  for  as  an  advertisement,  is  not  equally  in- 
cidental to  the  right  to  classify. 

"And  the  additional  exactions  as  to  disclosure  of  stock- 
holders, principals,  creditors,  etc.,  also  are  clearly  incidental 
to  the  power  to  classify  as  are  the  requirements  as  to  dis- 
closure of  ownership,  editors,  etc.,  which  for  so  many  years 
formed  the  basis  of  the  right  of  admission  to  the  classifica- 
tion. We  say  this  because  of  the  intimate  relation  which 
exists  between  ownership  and  debt.  .  .  . 

"  Considered  intrinsically,  no  completer  statement  of  the 
relation  which  the  newly  exacted  conditions  bear  to  the 
great  public  purpose  which  induced  Congress  to  continue  in 
favor  of  the  publishers  of  newspapers  at  vast  public  ex- 
pense the  low  postal  rate  as  well  as  other  privileges  ac- 
corded by  the  second  class  mail  classification,  can  be  made 
than  was  expressed  in  the  report  of  the  Senate  Committee 
stating  the  intent  of  the  legislation — that  is,  to  secure  to  the 
public  'in  the  dissemination  of  knowledge  of  current 
events'  by  means  of  newspapers,  the  names,  not  only  of 
the  apparent,  but  of  what  might  prove  to  be  the  real  and 
substantial  owners  of  the  publications  and  to  enable  the 
public  to  know  whether  the  matter  which  was  published  was 

15  Postal  Laws  and  Regulations  of  1913,  p.  223. 


EXTENSION   THROUGH    EXCLUSION    FROM    MAILS        l6/ 

what  it  purported  to  be,  or  was  in  substance  a  paid  adver- 
tisement. 

"We  repeat  that  in  considering  this  subject  we  are  con- 
cerned not  with  any  general  regulation  of  what  should  be 
published  in  newspapers,  nor  with  any  condition  excluding 
from  the  right  to  resort  to  the  mails,  but  we  are  concerned 
solely  and  exclusively  with  the  right  on  behalf  of  the  pub- 
lishers to  continue  to  enjoy  great  privileges  and  advantages 
at  the  public  expense,  a  right  given  them  by  Congress  upon 
condition  of  compliance  with  regulations  deemed  by  that 
body  incidental  and  necessary  to  the  complete  fruition  of 
the  public  policy  lying  at  the  foundation  of  the  privileges 
accorded."16 

This  decision  thus  applies  simply  to  the  suspension  of 
second  class  privileges  and  not  to  any  general  denial  of  the 
use  of  the  mails.  It  is  significant,  moreover,  that  the  Court 
expressly  refused  assent  to  the  contention  of  the  govern- 
ment, which  as  paraphrased  in  the  opinion,  was  that  the  law 
merely  "  imposes  conditions  necessary  to  be  complied  with 
to  enable  publishers  to  participate  in  the  great  and  exclusive 
privileges  and  advantages  which  arise  from  the  right  to  use 
the  second-class  mail,"  but  that  even  if  "  the  provision  be 
given  the  significance  attributed  to  it  by  the  publishers,  it  is 
valid  as  an  exertion  by  Congress  of  its  power  to  establish 
postoffices  and  post  roads,  a  power  which  conveys  an  ab- 
solute right  of  legislative  selection  as  to  what  shall  be 
carried  in  the  mails,  and  which,  therefore,  is  not  in  anywise 
subject  to  judicial  control  even  though  in  a  given  case  it  may 
be  manifest  that  a  particular  exclusion  is  but  arbitrary  be- 
cause resting  on  no  discernible  distinction  nor  coming  within 
any  discoverable  principle  of  justice  or  public  policy." 

The  Court,  however,  emphatically  refused  to  accept  this 
view,  saying  that  "  because  there  has  developed  no  necessity 
of  passing  on  the  question,  we  do  not  wish  even  by  the 
remotest  implication  to  be  regarded  as  assenting  to  the 
broad  contentions  concerning  the  existence  of  arbitrary 

16  Lewis  Publishing  Co.  v.  Morgan,  229  U.  S.  288  (1913). 


l68  THE   POSTAL   POWER   OF   CONGRESS 

power  through  the  classification  of  the  mails,  or  by  way  of 
condition,  embodied  in  the  proposition  of  the  government 
which  we  have  previously  stated." 

The  Supreme  Court  has,  however,  permitted  Congress,  in 
the  exercise  of  its  taxing  power,  and  less  noticeably  in  its 
control  of  interstate  commerce,  to  accomplish  ends  which 
were  not  included  in  the  enumerated  delegations  of  the  Con- 
stitution. Thus,  the  tax  on  state  bank  notes  which  made 
their  issue  unprofitable  was  upheld  on  the  ground  that  "  the 
judiciary  cannot  prescribe  to  the  legislative  department  of 
the  government  limitations  upon  the  exercise  of  its  acknowl- 
edged powers.  The  power  to  tax  may  be  exercised  op- 
pressively upon  persons,  but  the  responsibility  of  the  legis- 
lature is  not  to  the  courts,  but  to  the  people  by  whom  its 
members  are  elected."17  Such  a  position  in  this  case,  how- 
ever, was  easily  justified  on  the  ground  that  Congress  had 
the  power  to  stop  altogether  the  issue  of  the  state  bank  notes 
if  it  thought  that  this  course  was  necessary  in  order  to 
provide  an  effective  currency  system,  and  the  case  thus  loses 
much  of  its  apparent  importance.18 

More  illustrative,  perhaps,  of  the  plenary  power  of  Con- 
gress with  respect  to  the  raising  of  a  revenue,  and  im- 
possible to  justify  on  such  a  ground,  is  the  decision  uphold- 
ing a  tax  upon  oleomargarine  so  heavy  that  it  can  only  be 
manufactured  at  a  loss.  Thus,  unable  directly  to  control 
manufacture,  Congress  has  achieved  the  same  end  through 
the  exercise  of  its  taxing  power.  The  Supreme  Court  said : 

The  argument  "when  reduced  to  its  last  analysis  comes  to 
this:  that  because  a  particular  department  of  the  govern- 
ment may  exert  its  lawful  powers  with  the  object  or  motive 
of  reaching  an  end  not  justified,  therefore  it  becomes  the 
duty  of  the  judiciary  to  restrain  the  exercise  of  a  lawful 
power  whenever  it  seems  to  the  judicial  mind  that  such 

17  Veazie  v.  Fenno,  8  Wall.  533  (1869).    Italics  mine. 

18  In  Edye  v.  Robertson,  112  U.  S.  580  (1884)  the  Supreme  Court 
said  that  the  imposition   "  was  upheld  because   a  means  properly 
adopted  by  Congress  to  protect  the  currency  which  it  had  created," 
and  the  tax  was  not,  therefore,  subject  to  the  ordinary  rules. 


EXTENSION   THROUGH    EXCLUSION    FROM    MAILS        169 

lawful  power  has  been  abused.  But  this  reduces  itself  to 
the  contention  that  under  our  constitutional  system,  the 
abuse  by  one  department  of  the  government  of  its  lawful 
powers  is  to  be  corrected  by  the  abuse  of  its  powers  by 
another  department."19 

Such  reasoning  is,  it  appears,  final,  although  it  goes 
farther  than  the  Bank  Note  Case  which  declared  that  "  there 
are  indeed  certain  virtual  limitations  arising  from  the  prin- 
ciples of  the  Constitution  itself.  It  would  undoubtedly  be 
an  abuse  of  the  power  [that  of  taxation]  if  so  exercised  as 
to  impair  the  separate  existence  and  independent  self  gov- 
ernment of  the  states  or  if  exercised  for  ends  inconsistent 
with  the  limited  grants  of  power  in  the  Constitution."20 
However,  although  with  more  guarded  language,  the  Court, 
even  in  the  McCray  case,  intimated  that  a  judicial  veto 
might  attach  to  measures  which  on  their  face  bore  evidence 
of  not  being  tax  laws  at  all,  but  were  transparent  in  their 
purpose  to  control  subjects  not  within  the  power  of  Con- 
gress. Such  a  law  has  not  come  before  the  Supreme  Court. 

Not  so  striking,  but  nevertheless  important  illustrations 
of  this  "nullification  by  indirection"21  are  to  be  found  in 
the  interstate  commerce  legislation  of  recent  years.  Con- 
gress has  excluded  lottery  tickets  from  interstate  commerce 
on  account  of  their  harmful  effect  on  recipients;22  it  has 


19  McCray  v.  U.  S.,  197  U.  S.  27  (1903). 

20Veazie  v.  Fenno,  above.  The  distinction  has  sometimes  been 
drawn  between  acknowledged  powers  and  implied  powers  of  Con- 
gress. For  example,  the  power  to  tax  and  to  regulate  interstate 
commerce  is  granted  in  the  Constitution,  while  that  to  exclude  from 
the  mails  is  implied  from  the  postal  clause.  From  this  it  is  argued 
that  Congress  may  be  limited  in  its  indirect  control  under  an  implied 
power  when  the  same  objection  would  not  apply  to  the  exercise  of 
an  acknowledged  power.  (See  the  brief  of  James  M.  Beck  in  the 
newspaper  publicity  case,  printed  in  Cong.  Rec.,  December  n,  1912.) 
But  this  distinction  has  never  been  sanctioned  by  the  Supreme  Court 
of  the  United  States. 

It  is  proper,  however,  in  this  connection  to  point  out  the  extra- 
ordinary nature  of  the  taxing  power,  which  is,  in  Marshall's 
phrase,  the  "  power  to  destroy." 

21  The  term  is  Mr.  J.  M.  Beck's.     See  his  brief  in  Lewis  Publish- 
ing Co.  v.  Morgan,  supra,  and  his  article,  "  Nullification  by  Indi- 
rection," 23  Harvard  Law  Review,  441. 

22  Champion  v.  Ames,  188  U.  S.  321  (1902). 


I/O  THE   POSTAL   POWER  OF    CONGRESS 

assumed  a  control  over  the  manufacture  of  food  products 
by  establishing  standards  of  purity  which  must  be  met 
before  the  articles  may  begin  an  interstate  journey.23  The 
Mann  White  Slave  Act  extends  federal  control  to  im- 
morality in  the  states,  and  in  its  decision  upholding  this  law, 
the  Supreme  Court  frankly  admits  that  the  means  exerted 
"may  have  the  quality  of  police  regulations."24  Proposals 
are  now  made  to  control  manufacturing  and  trading  com- 
panies, whether  interstate  or  not,  by  compelling  them  to  take 
out  federal  charters  and  modify  their  business  practices 
(over  which  Congress  has  no  direct  control)  in  accordance 
with  federal  regulations  before  they  will  be  permitted  to 
enjoy  the  facilities  of  interstate  commerce.  It  is  most 
strongly  urged  that  the  national  legislature  has  the  power  to 
improve  labor  conditions  within  the  states,  the  most  desired 
manifestation  being  a  law  putting  articles  made  by  children 
under  specified  ages  in  the  same  class  with  lottery  tickets 
and  impure  foods. 

Up  to  this  time,  however,  legislation  under  the  commerce 
clause  has  developed  little  necessity  for  passing  upon  the 
question  whether  these  ultimate  purposes  may  be  considered 
by  the  courts,  for  the  indirect  control  effected  by  the  various 
acts  is  purely  incidental  in  character.  It  is  quite  proper  for 
Congress  to  build  up  an  Index  Expurgatorius  just  as  it 
has  done  in  the  case  of  the  mails,  and  to  say  that  commerce 
shall  not  be  "polluted"  by  the  carriage  of  obscene  litera- 
ture, impure  food,  and  made  an  agency  to  promote  im- 
morality. In  every  case,  the  power  has  been  exerted  on 
things,  not  on  persons,  and  only  once  has  there  been  even 
an  apparent  departure  from  this  theory.  Here  the  Supreme 
Court  by  a  forced  interpretation  of  the  statute  destroyed 
much  of  its  force.  I  refer  to  the  "commodities  clause"  of 
the  Hepburn  Bill  which  made  it  unlawful  for  any  railroad 
to  transport,  except  for  its  own  use,  any  commodity  other 
than  timber  which  it  had  manufactured,  mined,  or  pro- 

23  Hippolite  Egg  Co.  v.  U.  S.,  220  U.  S.  45  (1911). 

24  Hoke  v.  U.  S.,  227  U.  S.  308  (1913). 


EXTENSION   THROUGH    EXCLUSION    FROM    MAILS 

duced,  or  in  which  it  had  any  interest.  The  Court  in- 
terpreted this  as  meaning  that  the  railroad  was  not  for- 
bidden to  engage  in  mining,  but  that  before  transporting  the 
product,  it  had  to  divorce  itself  from  any  interest  by  a 
bona  fide  sale.  Such  legislation,  however,  was  "  necessary 
and  proper"  in  order  to  insure  the  enforcement  of  the 
regulations  providing  for  equality  of  rates,  publications  of 
tariffs,  etc.  Any  other  interpretation  would  have  required 
the  Court  to  consider  and  decide  several  very  "grave  con- 
stitutional questions  "  as  to  the  powers  of  Congress  to  regu- 
late the  production  and  ownership  of  commodities  simply 
because  they  might  become  subjects  of  interstate  com- 
merce.25 

But  conceding  the  authority  of  Congress  to  regulate  child 
labor  indirectly,  upon  what  theory  is  it  based  ?  In  the  words 
of  a  reluctant  convert,  "the  lottery  case  is  authority  for 
the  doctrine  that  interstate  carriers  may  be  prohibited  from 
carrying,  or  shippers  or  manufacturers  from  sending  from 
state  to  state  and  to  foreign  countries,  commodities  pro- 
duced under  conditions  so  objectionable  as  to  be  subject  to 
control,  as  to  their  manufacture,  by  the  states  under  an 
exercise  of  their  police  powers,  or  of  a  character  designed 
or  appropriate  for  a  use  which  might  similarly  be  forbidden 
by  law."26  Such  legislation,  however,  would  be  directed 
against  the  articles  produced  under  the  objectionable  condi- 
tions, and  the  manufacturers  who  employed  child  labor 
would  not  be  prohibited  from  using  the  advantages  of  in- 
terstate commerce  for  other  articles,  not  so  produced.27 

There  is  an  obvious  distinction  between  such  legislation 
and  that  advocated  by  the  money  trust  committee,  a  distinc- 

25  U.  S.  ex  rel.  Atty.  Gen.  v.  Delaware  &  H.  Co.,  213  U.  S.  366 
(1909). 

26  Opinion  of  Prof.  W.  W.  Willoughby,  quoted  by  J.  Y.  Brinton, 
"  The  Constitutionality  of  a  Federal  Child  Labor  Law,"  62  Univer- 
sity of  Pennsylvania  Law  Review,  501.    See  2  Willoughby  on  the 
Constitution,  738. 

27  A  further  argument  in  behalf  of  this  legislation  is  that  it  would 
harmonize  conflicting  state  laws  which  unduly  operate  in  favor  of 
certain  manufacturers  in  their  use  of  interstate  commerce. 


172  THE   POSTAL   TOWER   OF   CONGRESS 

tion  which  is  suggested,  but  not  stressed,  by  the  Solicitor 
General  in  the  brief  filed  on  behalf  of  the  government  in 
the  newspaper  publicity  case :  there  must  be  no  "  regulation 
of  the  private  business  of  citizens  in  a  manner  beyond  any 
express  or  implied  power  of  Congress  "  on  the  ground  that 
such  regulation  "imposes  as  a  penalty  for  disobedience  a 
denial  of  an  important  federal  privilege  which  Congress 
controls."  Any  legislation  excluding  from  the  mails  must 
apply  directly  to  the  things  mailed,  not  to  the  persons  using 
the  mails.  This  is  a  distinction  which  is  evident  in  the  de- 
cisions upholding  the  interstate  commerce  legislation,  and 
which  underlies  the  argument  that  Congress  may  exclude 
commodities  manufactured  in  whole  or  in  part  by  children. 
The  law  would  operate  directly  on  these  commodities,  not 
on  account  of  their  inherent  character  (which  would  prob- 
ably not  be  different  from  that  of  other  commodities  manu- 
factured by  adult  labor),  but  because  of  the  objectionable 
conditions  of  production.  And  by  a  parity  of  reasoning, 
Congress  could  exclude  from  the  mails  matter  relating  to 
gambling  transactions  which  might  be  forbidden  under  the 
police  power  of  the  state,  although  such  matter,  on  its  face, 
would  be  harmless.  But  it  is  an  entirely  different  propo- 
sition absolutely  to  deny  the  use  of  the  mails  because  cer- 
tain persons  have  refused  to  comply  with  conditions,  beyond 
the  power  of  Congress  directly  to  impose,  which  it  thinks 
may  result  in  regulating  objectionable  practices,  although 
these  may  be  entirely  disassociated  from  the  bulk  of  the 
matter  which  has  been  excluded. 

The  briefs  of  counsel  on  behalf  of  the  Pujo  Committee 
furnish  no  argument  to  change  the  opinion  here  expressed 
that  the  proposed  legislation  would  be  unconstitutional.28 
The  validity  of  the  bill  is  asserted  on  the  ground  of  the 

28  Brief  of  Samuel  Untermyer  and  Louis  Marshall,  Regulation  of 
the  Stock  Exchange,  p.  652  ff.  This  brief  argues  the  matter  at 
greater  length  than  does  the  report  of  the  Pujo  Committee  (p. 
1 19  ff.),  made  the  previous  year  and  is  in  reply  to  the  brief  of  counsel 
on  behalf  of  the  New  York  Stock  Exchange  (Regulation  of  the 
Stock  Exchange,  p.  570  ff.). 


EXTENSION   THROUGH   EXCLUSION   FROM    MAILS        1/3 

cases,  already  considered,29  upholding  the  power  of  Con- 
gress to  exclude  lottery  tickets  and  fraudulent  matter. 
Chief  importance,  however,  seems  to  be  attached  to  a  dictum 
of  a  District  Court  which  says: 

"If  the  use  of  the  mails  is  a  privilege  which  may  be 
granted  or  withheld  by  Congress,  Congress  has  the  power 
to  determine  what  shall  be  carried  and  what  excluded  .  .  . 
under  the  power  to  regulate  the  mails  it  has  seen  proper  to 
declare  that  they  shall  not  be  used  for  any  purposes  which 
are  detrimental  to  the  morals  of  the  people  or  against  public 
policy,  and  by  enacting  that  the  sending  of  obscene  matter 
through  the  mails  shall  not  be  permissible,  it  has  determined 
such  acts  to  be  against  public  policy."30  In  this  case  the 
only  matter  before  the  court  was  the  construction  of  the 
statute ;  there  was  no  question  as  to  the  power  of  Congress, 
and  the  reasoning  making  public  policy  the  test  is  clearly 
obiter.  Counsel  for  the  Pujo  Committee,  however,  boldly 
argued  as  follows : 

"  It  would  therefore  be  within  the  competency  of  Con- 
gress, to  prohibit  absolutely  the  transmission  through  the 
mails  of  a  circular  or  pamphlet  or  newspaper  containing  the 
quotations  or  information  concerning  transactions  in  securi- 
ties on  stock  exchanges  or  otherwise,  just  as  it  has  pro- 
hibited the  transmission  of  circulars  containing  informa- 
tion with  regard  to  lotteries.  Such  a  prohibition  may  be  ab- 
solute or  conditional.  Thus  Congress  might  accompany  a 
prohibition  absolute  in  form  with  a  proviso  that  its  inhibi- 
tion should  not  be  applicable  to  "  matter  relating  to  securi- 
ties "  sold  or  offered  for  sale  on  a  stock  exchange  duly  in- 
corporated, whose  charter  shall  contain  provisions  similar 
to  those  set  forth  in  the  pending  bill."  Congress,  the  argu- 

29  Chapters  II  and  IV.  See  also  Burton  v.  U.  3.,  202  U.  S.  344 
(1909),  where  there  is  a  dictum  that  the  statute  designed  to  prevent 
the  postoffice  from  being  used  in  aid  of  fraud  "  has  its  sanction  in 
the  power  of  the  United  States,  by  legislation,  to  designate  what 
may  be  carried  in  the  mails,  and  what  must  be  excluded  therefrom ; 
such  designation  and  exclusion  to  be,  however,  consistent  with  the 
rights  of  the  people  as  reserved  by  the  Constitution." 

80  U.  S.  v.  Musgrave,  160  Fed.  Rep.  700  (1908). 


174  THE   POSTAL   POWER   OF   CONGRESS 

ment  concludes,  would  simply  be  laying  down  a  "  rule  as  to 
what  shall  and  what  shall  not  be  mailable  matter,  and  in 
making  this  classification  it  is  giving  expression  to  what  it 
conceives  to  be  sound  public  policy,  to  the  same  extent  and 
in  the  same  way  it  does  when  it  enacts  any  other  kind  of 
legislation  that  comes  within  the  constitutional  grant  of 
legislative  powers."31 

But,  it  is  submitted,  Congress  would  be  doing  nothing  of 
the  sort.  In  the  cases  of  the  lottery  tickets  and  obscene 
matter,  the  inhibition  was  on  account  of  the  inherent  char- 
acter of  the  matter  mailed.  If  the  test  was  one  of  public 
policy,  as  the  very  broad  language  of  the  District  Court's 
opinion  would  seem  to  indicate,  Congress  simply  declared 
it  not  sound  public  policy  that  the  mails  of  the  United 
States  should  be  used  in  furtherance  of  transactions  that 
were  harmful.  To  be  sure  the  Postmaster  General  is 
authorized  to  seize  and  detain  all  letters  addressed  to  a  per- 
son against  whom  a  fraud  order  has  issued,  but  this  is 
justifiable  on  the  ground  that  it  is  reasonably  necessary  in 

31  Regulation  of  the  Stock  Exchange,  p.  657.  The  proposal  in  the 
Pujo  Bill  to  deny  unincorporated  stock  exchanges  the  use  of  the 
telephone  or  telegraph  for  the  transmission  of  their  quotations, 
raises  the  question  whether  Congress  may  exercise  such  indirect 
control  under  the  guise  of  regulating  interstate  commerce.  This 
question  is  discussed  in  the  briefs  (Regulation  of  the  Stock  Ex- 
change, p.  570  ff.  and  p.  660  ff.),  and  is  outside  the  purview  of  the 
present  essay.  From  the  brief  review  which  I  have  attempted  of 
the  interstate  commerce  cases,  however,  it  does  not  appear  that  they 
lend  any  support  to  the  proposition  contended  for  by  the  Pujo 
Committee.  Generally  speaking,  the  same  principles  are  applicable, 
in  relation  to  the  power  over  interstate  commerce  as  in  relation  to 
that  over  the  mails  as  furnishing  a  means  by  which  indirect  control 
may  be  exerted.  But  it  is  proper  to  point  out  two  possible  differ- 
ences: (i)  an  exclusion  from  interstate  commerce  is  printa  facie  a 
"regulation"  within  the  meaning  of  the  grant  in  the  Constitution; 
an  exclusion  from  the  mails,  on  the  contrary,  is  not  made  "to  estab- 
lish postoffices,"  and  it  would  seem,  therefore,  that  the  inhibition 
would  have  to  be  justified  as  "necessary  and  proper"  to  this  end; 
(2)  postal  facilities  are  established  and  maintained  by  Congress  for 
use,  upon  the  same  terms,  by  everyone  standing  in  the  same  relation 
to  the  government,  and  it  is  therefore  possible  to  argue  that  a  denial 
of  these  facilities  would  be  improper,  when  an  equally  arbitrary 
regulation  of  interstate  commerce  might  not  be.  Neither  of  these 
differences,  it  may  be  added,  is  so  clear  as  to  be  controlling;  the 
first  seems  to  me  of  probable  importance,  but  the  second,  while  it 
has  been  suggested,  is  of  doubtful  validity. 


EXTENSION    THROUGH    EXCLUSION    FROM    MAILS 

order  to  make  effective  the  regulations  against  using  the 
postoffice  to  defraud;  but  Congress  has  not  yet  made  it  a 
crime  for  anyone,  some  of  whose  mail  matter  may  come 
within  the  inhibition,  to  deposit  in,  or  take  from,  the  mails, 
letters  of  a  personal  and  harmless  character.  It  is  im- 
proper, then,  to  argue  that  in  passing  the  Pujo  Bill,  Con- 
gress would  act  "  to  the  same  extent  and  in  the  same  way  " 
as  it  has  done  in  the  past.  The  authority  of  the  fraud  order 
decisions  is  simply  that  if  Congress  excludes  matter  relat- 
ing to  gambling  transactions  (as  it  probably  has  the  right  to 
do),  correspondence  deposited  by  or  addressed  to,  the  per- 
son suspected  of  unlawfully  using  the  mails,  may  be  seized 
and  detained  in  order  to  make  the  gambling  regulations  ef- 
fective. But  the  cases  furnish  no  ground  for  the  belief 
that  Congress  may  penalize  the  use  of  the  mails  by  these 
persons  for  the  transmission  of  matter  that  is  harmless. 
The  brief  of  counsel  for  the  Pujo  Committee  does  not  argue 
this  point;  nor  does  it  take  the  natural,  but  nevertheless 
untenable,  further  position  and  maintain  that  Congress  may 
make  it  a  crime  to  deposit  this  harmless  matter  in  order  to 
detect  violations  of  a  law  excluding  information  concerning 
gambling  contracts. 

On  the  contrary,  counsel  conceive  the  public  policy  of  the 
proposed  legislation  to  be  the  enforcement  of  the  regulations 
set  forth  in  the  pending  bill, — regulations  that  are  not  con- 
cerned with  the  character  of  the  mail  matter,  but  with 
persons  using  the  mails.  Not  even  by  twisted  interpreta- 
tions can  the  adjudicated  cases  be  made  to  support  such 
reasoning.  The  "newspaper  publicity  law"  which  marks 
the  extreme  assertion  of  congressional  authority,  applies 
directly  to  the  papers  mailed.  Only  one  dictum,  of  a  nisi 
prius  court,32  lays  down  the  test  of  public  policy,  and  if, 
under  its  enumerated  powers,  Congress  may  legislate  in  ful- 
fillment of  this  vague  purpose,  there  would  be  a  good  deal 
of  difficulty,  I  fancy,  in  showing  that  it  would  be  subserved 
by  the  enforcement  of  the  proposed  regulations.  And  con- 

32  U.  S.  v.  Musgrave,  above. 


176  THE   POSTAL   POWER   OF   CONGRESS 

ceding  that  Congress  may  control  the  postoffice  on  grounds 
of  public  policy,  the  fact  that  the  ends  to  be  attained  are 
unconnected  with  the  use  of  the  mails,  would  prevent  the 
legislative  fiat  from  being  final,  and  the  enforcement  of  the 
Pujo  Committee's  recommendations  would  be  so  onerous 
and  remote,  that  it  would,  I  venture,  not  be  permitted.33 
Reasoning  such  as  that  indulged  in  by  the  counsel,  more- 
over, disregards  the  principle  that  runs  through  all  the  cases : 
the  enforcement  of  postal  regulations  must  be  consistent 
with  the  rights  reserved  to  the  people.  And  the  Pujo  Bill 
attempts  to  regulate,  not  the  mails,  but  stock  exchanges. 

The  first  Employers'  Liability  Case,3*  it  is  submitted,  fur- 
nishes sufficient  basis  to  uphold  the  correctness  of  the  view 
that  the  proposed  legislation  is  unconstitutional.  In  these 
cases  it  was  held  that  the  statute  was  not  confined  to  a 
regulation  of  interstate  commerce,  but  attempted  to  control 
persons,  not  only  as  to  their  engaging  in  interstate  com- 
merce, but  in  other  respects,  simply  because  some  of  their 
activities  came  under  the  authority  of  Congress.  Further- 
more, the  Supreme  Court  has  held  that  "there  is  no  such 
connection  between  interstate  commerce  and  membership  in 
a  labor  organization  as  to  authorize  Congress  to  make  it  a 
crime  against  the  United  States  for  an  agent  of  an  inter- 
state carrier  to  discharge  an  employee  because  of  such 
membership  on  his  part."35 

There  are  a  number  of  dicta  of  the  United  States  Su- 

33  The  point  here  made,  to  repeat,  is  that  if  Congress  can  legis- 
late on  grounds  of  public  policy,  its  regulations  must  be  connected 
with  the  use  of  the  mails.    The  proposed  legislation  does  not  seem  to 
fulfill  this  condition,  for  much,  if  not  the  greater  part  of  the  matter 
transmitted,  would  be  harmless.    It  should  be  added,  however  (al- 
though the  policy  of  the  legislation  is  not  here  considered),  that,  con- 
ceding the  power  of  Congress  to  act  for  the  accomplishment  of  pur- 
poses not  connected  with  the  proper  use  of  the  mails,  there  are  not 
unimportant  economic  objections  to  the  proposed  law.     (Regulation  of 
the  Stock  Exchange,  p.  527  ff.  and  p.  585  ff.)     These  objections,  I 
think,  would  have  to  be  examined  by  the  courts  if  Congress  should 
be  allowed  the  power  which  I  have  attempted  to  show  it  does  not 
possess. 

34  207  U.  S.  463  (1907). 

ss  Adair  v.  U.  S.,  208  U.  S.  161  (1907)  ;  see  also  Keller  v.  U.  S., 
213  U.  S.  138  (1908). 


EXTENSION   THROUGH    EXCLUSION    FROM    MAILS        I// 

preme  Court,  particularly  in  regard  to  objectionable  state 
statutes,  which  show  that  attempted  indirect  regulation  is 
considered  improper,  at  least  for  the  local  legislatures. 
First  in  time  and  importance  comes  Marshall's  famous  state- 
ment, that  "should  Congress  under  pretext  of  executing 
its  powers,  pass  laws  for  the  accomplishment  of  objects  not 
entrusted  to  the  government,  it  would  become  the  painful 
duty  of  this  tribunal,  should  a  case  requiring  such  a  decision 
come  before  it,  to  say  that  such  an  act  was  not  the  law  of 
the  land."86 

Or,  as  was  said  in  another  case:  "The  courts  are  not 
bound  by  mere  forms,  nor  are  they  to  be  misled  by  mere 
pretenses.  They  are  at  liberty — indeed  under  a  solemn 
duty — to  look  at  the  substance  of  things,  whenever  they 
enter  upon  the  inquiry  whether  the  legislature  has  tran- 
scended the  limits  of  its  authority.  If,  therefore,  a  statute 
purporting  to  have  been  enacted  to  protect  the  public 
health,  the  public  morals,  or  the  public  safety,  has  no  real 
or  substantial  relation  to  those  objects,  or  is  a  palpable  in- 
vasion of  the  rights  secured  by  fundamental  law,  it  is  the 
duty  of  the  courts  to  so  adjudge  and  thereby  give  effect  to 
the  Constitution."37  No  power  ought  to  be  sought,  much 
less  adjudged,  "  in  favor  of  the  United  States,  unless  it  be 
clearly  within  reach  of  its  constitutional  charter."  The 
courts  are  "not  at  liberty  to  add  one  jot  of  power  to  the 
national  government  beyond  what  the  people  have  granted 
by  the  Constitution."33 

The  Court  has,  moreover,  adhered  to  "  the  great  principle 
that  what  cannot  be  done  directly  because  of  constitutional 
restriction,  cannot  be  accomplished  indirectly  by  legislation 
which  accomplishes  the  same  result.  .  .  .  Constitutional  pro- 
visions," adds  Justice  Brewer,  "whether  operating  by  way 
of  grant  or  limitation,  are  to  be  enforced  according  to  their 
letter  and  cannot  be  evaded  by  any  legislation  which, 

36  McCulloch  v.  Maryland,  4  Wheat  316  (1810) 
7Mugler  v.  Kansas,  123  U.  S.  623  (1887). 
38  Houston  v.  Moore,  5  Wheat.  I   (1820). 
12 


178  THE   POSTAL   POWER   OF   CONGRESS 

although  not  in  terms  trespassing  upon  the  letter  and  spirit, 
yet  in  substance  or  effect  destroys  the  grant  or  limitation."39 

It  is,  moreover,  a  serious  question  whether  arbitrary  ex- 
clusions from  the  mails  would  not  abridge  the  guarantee  of 
due  process  of  law.  This  question  has  never  been  before 
the  Supreme  Court  of  the  United  States,  but  a  District 
Court  has  maintained  that  "  the  postal  monopoly,  if  granted 
and  exercised  by  a  citizen  or  a  corporation  would,  from  the 
fact  of  its  being  a  monopoly,  make  it  imperative  that  all 
persons  who  paid  the  postal  rates  and  conformed  to  the 
reasonable  regulations  of  the  postal  service  should  have  a 
common  right  to  the  use  of  the  mails,  and  that,  because  of 
the  fact  of  the  monopoly  thus  granted.  This  right  would 
be  protected  in  the  courts  if  the  citizen  or  the  corporation 
controlling  the  postal  service  should  attempt  to  deprive  him 
of  it." 

The  court  then  suggests  that  if  the  federal  government 
should  become  the  owner  of  all  transportation  lines  and 
establish  a  monopoly,  facilities  would  have  to  be  extended 
to  all,  subject  "to  such  general  laws  and  regulations  as  to 
rates  and  the  operation  of  the  lines  as  might  be  enacted  and 
established";  that  the  right  to  travel  and  ship  freight 
"would  be  readily  recognized  as  a  property  right  in  the 
citizen  and  one  of  which  a  particular  citizen  could  not  be 
deprived  except  by  due  process  of  law.  We  think  the  right 
to  the  use  of  the  mails,  though  in  a  degree  much  less  valu- 
able, than  the  use  of  the  transportation  lines,  would  be 
equally  a  property  right,  and  one  which  could  not  be  taken 

89  Fairbank  v.  U.  S.,  181  U.  S.  283  (1901).  In  Union  Bridge  Co. 
v.  U.  S.,  204  U.  S.  364  (1907)  this  language  was  used:  "If  the 
means  employed  have  no  substantial  relation  to  public  objects  which 
the  government  may  legally  accomplish,  if  they  are  arbitrary  and 
unreasonable  beyond  the  necessities  of  the  case,  the  judiciary  will 
disregard  mere  forms  and  interfere  for  the  protection  of  rights 
injuriously  affected  by  such  illegal  action.  The  authority  of  the 
courts  to  interfere  in  such  cases  is  beyond  all  doubt."  See  also 
Morgan  v.  Louisiana,  118  U.  S.  455  (1886)  ;  Postal  Tel.  Co.  v. 
Adams,  155  U.  S.  688  (1895)  ;  Collins  v.  New  Hampshire,  171  U.  S. 
30  (1898),  and  Henderson  v.  The  Mayor  of  New  York,  92  U.  S. 
259  (1876). 


EXTENSION   THROUGH    EXCLUSION    FROM    MAILS 

away  except  by  due  process  of  law."40  The  use  of  this 
property  right  would,  of  course,  be  subject  to  police  regu- 
lations by  Congress,  to  the  extent  that  they  have  been  upheld 
by  the  Supreme  Court,  or  to  which  this  argument  concedes 
that  they  may  go, — always  applying,  however,  directly  to 
the  things  mailed. 

One  of  the  methods  urged  for  compelling  federal  incor- 
poration of  trading  companies  engaged  in  interstate  com- 
merce is  the  denial  of  postal  facilities  to  state  chartered 
concerns,  and  concerning  this  one  of  the  abler  advocates 
of  such  an  end,  says :  "If  we  are  correct  in  believing  that 
due  process  requires  the  equal  protection  of  the  laws,  an 
arbitrary  selection  or  classification  is  beyond  the  power  of 
Congress.  A  law  which  divides  those  who  use  the  mail 
into  two  general  classes,  all  state  corporations  on  the  one 
hand,  and  all  which  are  not  incorporated  by  a  state  on  the 
other,  does  not  seem  based  upon  any  reasonable  difference, 
either  in  the  character  of  the  person  or  in  the  kind  of  mail 
matter  sent,  which  will  make  the  classification  more  than 
arbitrary  selection.  The  constitutionality  of  this  method, 
therefore,  seems  open  to  grave  question."41  The  conclu- 
sion of  this  writer,  therefore,  is  that  the  constitutionality  of 
the  Pujo  Bill  would  be  open  "to  grave  question"  as  deny- 
ing due  process  of  law. 

Thus  far  the  proposed  extension  of  federal  control  by 
forbidding  persons  to  use  the  mails,  has  been  objected  to  as 
(in  the  suggested  bill  at  least)  abridging  the  freedom  of  the 
press,  as  not  being  a  bona  fide  regulation  of  the  mails,  as 
attempting  to  obviate  the  objection  of  ultra  vires  by  the  use 
of  indirect  means,  and  as  denying  due  process  of  law. 
There  is  a  final  consideration,  which,  while  not  legally  con- 

*°  Hoover  v.  McChesney,  81  Fed.  Rep.  472  (1897).  "The  right 
to  mail  matter  was  considered  in  Teal  v.  Felton  [12  How.  284 
(1851)],  but  was  not  established  as  a  right  peculiar  to  citizens." 
Lien,  Privileges  and  Immunities  of  Citizens  of  the  United  States, 
p.  41  (Columbia  University  Studies  in  History,  Economics  and 
Public  Law,  vol.  liv,  no.  i).  But  it  would  not  seem  that  this  case 
considered  such  a  subject. 

41  Heisler,  Federal  Incorporation,  p.  86. 


l8O  THE   POSTAL   POWER   OF   CONGRESS 

trolling,  is  none  the  less  important.  Without  holding 
strictly  to  a  "  literary  theory  "42  of  the  Constitution  one  can 
regret  the  apparently  growing  tendency  to  disregard  consti- 
tutional provisions  and  to  sanction  all  legislation  if,  by  any 
twisted  interpretation,  it  can  be  upheld  by  the  courts,  al- 
though it  may,  as  in  the  case  of  the  postoffice  proposals  con- 
sidered above,  be  well  outside  the  fairly  considered  powers 
of  the  law-making  body.  This  tendency  shows  an  impatience 
of  legal  restraint,  and  a  disinclination  to  follow  what  may  be 
called  constitutional  morality.  The  phrase  is  that  of 
Grote,43  who,  describing  Athenian  Democracy  in  the  time 
of  Kleisthenes,  emphasized  the  necessity  for  "  a  perfect  con- 
fidence in  the  bosom  of  every  citizen,  amidst  the  bitterness 
of  party  contest,  that  the  forms  of  the  constitution  will  be 
no  less  sacred  in  the  eyes  of  his  opponents  than  in  his  own." 
Such  constitutional  morality  he  called  "a  natural  senti- 
ment "  as  it  exists  in  the  United  States,  but  these  words  will 
no  longer  be  true  if  Congress  may  extend  its  control  in  the 
manner  proposed,  without  waiting  for  a  grant  of  authority 
in  the  manner  provided  for  by  the  Constitution.44 

And  if  the  courts  should  permit  such  extensions  of  fed- 
eral control,  enormous  powers  will,  by  judicial  construc- 
tion, be  taken  from  the  states  and  given  over  to  the  national 
legislature.  For,  as  it  is  hardly  necessary  to  remark,  the 
denial  of  postal  and  interstate  commerce  facilities  would 
be  almost  as  efficacious  as  positive  legislation ;  without  using 
the  mails  and  the  channels  of  trade  no  business  could  suc- 
cessfully exist.  If  congressional  control  may  be  thus  ex- 
tended, every  business  and  every  individual  needing  to  use 
the  mails  would  become  subject  to  federal  regulation  on 
the  vague  ground  of  public  policy.  The  reserved  powers  of 
the  states  would  then  exist  only  by  the  sufferance  of  Con- 
gress, and  the  cardinal  theory  of  the  American  system — that 
the  federal  government  is  one  of  enumerated  powers — 
would  become  a  cynical  fiction. 

42  Woodrow  Wilson,  Congressional  Government,  p.  12. 

43  History  of  Greece,  vol.  ii,  p.  86. 

44  But  see  Goodnow,  Social  Reform  and  the  Constitution,  p.  91  ff. 


TABLE  OF  CASES 


PAGE 

Achison  v.  Huddleson,  12  Howard,  293  9° 

Adair  v.  United  States,  208  U.  S.  161  176 

Adams  v.  The  People,  i  N.  Y.  173 147 

American  School  of  Magnetic  Healing  v.  McAnnulty,  187  U.  S.  94    58 

Andrews  v.  United  States,  162  U.  S.  420 49 

Atlantic  Coast  Line  R.  Co.  v.  Wharton,  207  U.  S.  328 133 

Bates  &  Guild  Co.  v.  Payne,  194  U.  S.  106 58 

Battle  v.  United  States,  209  U.  S.  36 149 

Blackham  v.  Gresham,  16  Fed.  Rep.  609 43,    93 

Bowman  v.  Chicago  &  Northwestern  R.  Co.,  125  U.  S.  465 145 

Boyd  v.  United  States,  116  U.  S.  616 124 

Brig  Wilson,  I  Brockenborough,  423  113,  127 

Burton  v.  United  States,  202  U.  S.  344 173 

California  v.  Pacific  Railroad  Co.,  127  U.  S.  I  95,  152 

Chae  Chan  Ping  v.  United  States,  130  U.  S.  581  108 

Champion  v.  Ames,  188  U.  S.  321  117,  169 

Cleveland,  P.  &  A.  R.  Co.  v.  Franklin  Canal  Co.,  5  Fed.  Cas.  1044    91 

Cohens  v.  Virginia,  6  Wheaton,  264 136 

Collins  v.  New  Hampshire,  171  U.  S.  30 178 

Commonwealth  v.  Knox,  6  Mass.  76 131 

Cooley  v.  Port  Wardens,  12  Howard,  299 113 

Crossley  v.  California,  168  U.  S.  640 149 

Debs,  In  re,  158  U.  S.  564 10,  47,  151 

Dickey  v.  Maysville,  etc.  Co.,  7  Dana  (37  Ky.),  113 86 

Dunlop  v.  United  States,  165  U.  S.  486 49 

Eastman  v.  Armstrong  Byrd  Music  Co.,  212  Fed.  Rep.  662 56 

Employers'  Liability  Cases,  207  U.  S.  463  176 

Eyde  v.  Robertson,  112  U.  S.  580 168 

Fairbank  v.  United  States,  181  U.  S.  283 178 

Fong  Yue  Ting  v.  United  States,  149  U.  S.  698 108 

Golden  v.  Prince,  10  Fed.  Cas.  542 113 

Grand  Jury,  In  re,  62  Fed.  Rep.  834,  840 45 

Grimm  v.  United  States,  156  U.  S.  604 49 

Hanover  Bank  v.  Moyses,  186  U.  S.  181 114 

Harmon  v.  Moore,  59  Maine,  428 135 

Hayner  v.  State,  83  Ohio  St.  178 147 

Henderson  v.  The  Mayor  of  New  York,  92  U.  S.  259 178 

Hennington  v.  Georgia,  163  U.  S.  299 130 

Hippolite  Egg  Co.  v.  United  States,  220  U.  S.  45 170 

181 


1 82  TABLE   OF    CASES 


PAGE 

Hoke  v.  United  States,  227  U.  S.  308 ' 52,  113,  170 

Hoover  v.  McChesney,  81  Fed.  Rep.  472 125,  179 

Houston  v.  Moore,  5  Wheaton,  i  177 

Illinois  Central  R.  Co.  v.  Illinois,  163  U.  S.  142 132 

Jackson,  Ex  parte,  96  U.  S.  727 54,  97,  no,  114,  115-116,  118,  125 

Keller  v.  United  States,  213  U.  S.  138 55,  176 

Knowles  v.  United  States,  170  Fed.  Rep.  409 49,    50 

Kohl  v.  United  States,  91  U.  S.  367 92 

Lathrop  v.  Middleton,  23  Cal.  257 135 

Leisy  v.  Hardin,  135  U.  S.  100 146 

Lewis  Publishing  Co.  v.  Morgan,  229  U.  S.  288.  .98,  no,  121,  167-169 
Lottery  Case,  see  Champion  v.  Ames. 

McCray  v.  United  States,  197  U.  S.  27 169 

McCullpch  v.  Maryland,  4  Wheaton,  316 36,  40,  81,  177 

Mississippi  R.  Commission  v.  Illinois  C.  R.  Co.,  203  U.  S.  335  . . .  133 

Missouri  Drug  Co.  v.  Wyman,  129  Fed.  Rep.  623 58 

Monongahela  Navigation  Co.  v.  United  States,  148  U.  S.  312  . . 

Morgan  v.  Louisiana,  118  U.  S.  455 

Mugler  v.  Kansas,  123  U.  S.  623 177 

Neagle,  In  re,  135  U.  S.  i 108 

Neil  v.  Ohio,  3  Howard,  720 90 

Nelson  v.  State,  25  Texas  App.  599 131 

Newspaper  Publicity  Case,  see  Lewis  Publishing  Co.  v.  Morgan. 

Osborn  v.  The  Bank  of  the  United  States,  9  Wheaton,  738  .  .152,  155 

Palliser  v.  United  States,  136  U.  S.  257 53,  147 

Patterson  v.  Colorado,  205  U.  S.  458 102 

Pennsylvania  v.  Wheeling  Bridge  Co.,  18  Howard,  421  93 

Penny  v.  Walker,  64  Maine,  430 135 

Pensacola  Telegraph  Co.  v.  Western  Union  Telegraph  Co.,  96 

U.  S.  i   33,  156 

People  v.  Croswell,  3  Johns.  Cas.  (N.  Y.)  337 100 

Phalen  v.  Virginia,  8  Howard,  164 53 

Postal  Telegraph  Co.  v.  Adams,  155  U.  S.  688 178 

Public  Clearing  House  v.  Coyne,  194  U.  S.  497 49,    57 

Rapier,  In  re,  143  U.  S.  no 54,  98,  117,  118,  148 

Regina  v.  Hicklin,  L.  R.,  3  Q.  B.  360 50 

Reinach  v.  Cortelyou,  28  App.  D.  C.  570 58 

Respublica  v.  Oswald,  i  Dallas,  319 102 

Rhodes  v.  Iowa,  170  U.  S.  412 146 

Rose  Co.  v.  State,  133  Ga.  353 148 

Rosen  v.  United  States,  161  U.  S.  29 50 

Rupert  v.  United  States,  181  Fed.  Rep.  87 127 

Schutz  v.  Dalles  Military  Road  Co.,  7  Oregon,  259 90 

Seabright  v.  Stokes,  3  Howard,  151  88 

Siebold,  Ex  parte,  100  U.  S.  371  114,  144 


TABLE   OF   CASES  183 

PAGE 

Slaughter  House  Cases,  16  Wallace,  36 102 

State  v.  Delaye,  68  So.  993 146 

State  v.  Norfolk  &  W.  R.  Co.,  33  W.  Va.  440 131 

Swearingen  v.  United  States,  161  U.  S.  446 49,    50 

Teal  v.  Felton,  12  Howard,  284 179 

Tennessee  v.  Davis,  100  U.  S.  257 144 

Thomas  v.  Cincinnati,  62  Fed.  Rep.  803 46 

Trombley  v.  Humphrey,  23  Mich.  472 92 

Turner  v.  Williams,  194  U.  S.  279 120 

Turnpike  Co.  v.  Newlands,  15  N.  C.  463  136 

Union  Bridge  Co.  v.  United  States,  204  U.  S.  364 178 

United  States  v.  Barney,  3  Hughes'  Reports  (U.  S.  C.  C.)  ..545,  133 

United  States  v.  Benedict,  165  Fed.  Rep.  221 49 

United  States  v.  Bennett,  16  Blatchford,  343 50 

United  States  v.  Bott,  24  Fed.  Cas.  1204 56 

United  States  v.  Boyle,  40  Fed.  Rep.  664 50 

United  States  v.  Bromley,  12  Howard,  88 42 

United  States  v.  Chandler-Dunbar  Water  Power  Co.,  229  U.  S.  53  156 

United  States  v.  Chase,  135  U.  S.  255 49 

United  States  v.  Clark,  25  Fed.  Cas.  443 45 

United  States  v.  Clark,  23  Int.  Rev.  Rec.  306 135 

United  States  v.  Claypool,  14  Fed.  Rep.  127 45 

United  States  v.  Cruikshank,  92  U.  S.  542 102 

United  States  v.  Debs,  65  Fed.  Rep.  210 46 

United  States  v.  Delaware  &  Hudson  Canal  Co.,  213  U.  S.  366  . .  171 

United  States  v.  Demolli,  144  Fed.  Rep.  363 48 

Unite  1  States  v.  Dempsey,  185  Fed.  Rep.  450 50 

United  States  v.  De  Mott,  3  Fed.  Rep.  478 135 

United  States  v.  Easson,  18  Fed.  Rep.  590 44 

United  States  v.  Erie  R.  Co.,  235  U.  S.  513 45 

United  States  v.  Gettysburg  Electric  Co.,  160  U.  S.  668 152 

United  States  v.  Green,  137  Fed.  Rep.  179 127 

United  States  v.  Hall,  26  Fed.  Cas.  75 42 

United  States  v.  Hall,  26  Fed.  Cas.  79 102 

United  States  v.  Hart,  i  Peters'  C.  C.  390 131 

United  States  v.  Harvey,  8  Law  Reporter,  77 134 

United  States  v.  Hudson  &  Goodwin,  7  Cranch,  32 83,  108,  119 

United  States  v.  Inlots,  26  Fed.  Cas.  482 92 

United  States  v.  Kendall,  5  Cranch  (U.  S.  C.  C.),  275 28 

United  States  v.  Kennerley,  209  Fed.  Rep.  119 50 

United  States  v.  Kimball,  26  Fed.  Cas.  782 45 

United  States  v.  Kirby,  7  Wallace,  482 134 

United  States  v.  Kochersperger,  26  Fed.  Cas.  803 41,  43,  93 

United  States  v.  Ling,  61  Fed.  Rep.  1001  49 

United  States  v.  McCracken,  3  Hughes'  Reports,  544 135 

United  States  v.  Mills,  7  Peters',  138 41 

United  States  v.  Moore,  104  Fed.  Rep.  78 49 

United  States  v.  Musgrave,  160  Fed.  Rep.  700 173,  175 

United  States  v.  Nathan,  61  Fed.  Rep.  936 49 

United  States  v.  O'Donnell,  165  Fed.  Rep.  218 49 

United  States  v.  Pearce,  2  McLean's  C.  C.  R.  14 41 

United  States  v.  Popper,  98  Fed.  Rep.  423 49 

United  States  v.  Sears,  55  Fed.  Rep.  268 45,  136 


184  TABLE   OF    CASES 

PAGI 

United  States  v.  Stevens,  27  Fed.  Cas.  1312 46 

United  States  v.  Stowell,  133  U.  S.  I 43 

United  States  v.  Thayer,  209  U.  S.  39 14? 

United  States  v.  Thompson,  28  Fed.  Cas.  97 41 

United  States  v.  United  States  Express  Co.,  5  Biss.  91  42 

United  States  v.  Warner,  59  Fed.  Rep.  355 49 

United  States  v.  Wilson,  58  Fed.  Rep.  768 49 

United  States  v.  Wilson,  i  Baldwin  (U.  S.  C.  C),  78 40 

United  States  v.  Wood,  3  Wash.  C.  C.  R.  440 41 

Veazie  v.  Fenno,  8  Wallace,  533 168,  169 

West  Virginia  v.  Adams  Express  Co.,  219  Fed.  Rep.  794 147 

Wilson  v.  Shaw,  204  U.  S.  24 33 

Zinn  v.  State,  83  Ark.  273 147 


INDEX 


Abolitionist  literature.  See  In- 
cendiary publications. 

Adams,  John  Quincy,  78. 

Administrative  determination  to 
exclude  mail  matter,  conclu- 
siveness  of,  57  if. 

Advertisements  of  intoxicating 
liquors,  146  ff. 

Amendments  to  Constitution 
giving  Congress  power  to  con- 
struct roads,  73. 

Anarchistic  publications  and  the 
postomce,  118. 

Antecedents  of  the  postal  power, 
9-26. 

Appropriations  for  national  and 
local  purposes,  79. 

Arbitration  of  industrial  dis- 
putes, 151. 

Articles  of  Confederation,  72, 
76,  81. 

Bache,  Richard,  15. 

Baltimore  and  Ohio  Railroad 
Company,  28. 

Bank  Note  Case,  169. 

Bankruptcy  laws,  uniformity  of, 
114. 

Banks,  power  of  Congress  to 
charter,  80. 

Barbour,  J.  S.,  74. 

Beck,  J.  M.,  169  n. 

Bilke,  H.  W.,  108. 

Blackstone's  Commentaries,  100, 
101. 

Blair,  Postmaster  General,  51  n. 

Bonaparte,  Charles  J.,  118  ff. 

"  Bonus  Bill "  for  road  con- 
struction, 66. 

Brewer,  Justice,  177. 

Buchanan,  James,  110-112. 

Calhoun,  J.  C,  67  ff.,  106  ff., 
136  ff. 

Canals,  power  of  Congress  to 
cut,  25;  to  aid  by  appropria- 
tion, 72. 


Carter,  James  C.,  148. 

Clapp,  Moses  E.,  35. 

Classification  of  mail  matter, 
29-30. 

Clay,  Henry,  71  ff.,  no. 

Cockburn,  Lord,  50. 

Codification  of  postal  laws,  60. 

Collectivist  activities  of  post 
office,  33-36. 

Commercial  power  of  Congress, 
155,  160. 

Committee  of  the  States,  20. 

"  Commodities  clause,"  170. 

Confederation,  Articles  of,  pos- 
tal clause  in,  16;  inadequacy 
of  the  power  vested  in  Con- 
gress by,  20-22. 

Congress,  power  to  establish 
postoffices,  26  ff. ;  to  secure 
the  mails  and  punish  improper 
use,  36  ff. ;  to  establish  post- 
roads,  61  ff. ;  to  own  and  oper- 
ate railroads,  150;  to  own  and 
operate  telegraphs  and  tele- 
phones, 156;  to  extend  con- 
trol through  exclusions  from 
the  mails,  158  ff. 

Constitution,  grant  of  postal 
power  by,  23. 

"  Constitutional  American  Post- 
office,"  13. 

Constitutional  Convention  and 
postal  power,  22-25  '•>  and  power 
to  cut  canals,  25 ;  and  freedom 
of  press,  98-100. 

Constitutional  morality,  180. 

Constitutionality,  of  excluding 
obscene  matter,  51;  lottery 
tickets  and  advertisements,  52 ; 
fraudulent  matter,  56;  an- 
archistic publications,  120;  of 
owning  railroads,  150 ;  of  own- 
ing telegraphs  and  telephones, 
156;  of  excluding  libelous 
matter,  159;  of  attempting  in- 
direct control,  160  ff. 


185 


186 


INDEX 


Continental  Congress,  establish- 
ment of  post  by,  13. 

Copyright,  publications  violat- 
ing, non-mailable,  48  n. 

Cotton  futures,  trading  in,  164. 

Crimes  against  the  mails,  36-56. 

Crimes  in  postoffices,  149  n. 

Crittenden,  Attorney-General, 
131. 

Crumpacker,  E.  D.,  58  ff. 

Cumberland  Road,  62  ff.,  82. 

Gushing,  Caleb,  140  ff. 

Dallas,  Secretary,  83. 

Daniels,  Justice,  90. 

Davis,  John,  in. 

Dead  Letter  Office,  125. 

Dead  letters,  16. 

Debs  Cases,  46. 

Defamatory  matter  non-maila- 
ble, 50. 

Detention  of  mail,  131 ;  by  pos- 
tal employee,  133. 

Dicey,  A.  V.,  100. 

Dickey  Case,  91. 

Due  process  of  law,  126,  158  ff. 

Eminent  domain,  federal  power 
of,  15,  63,  70,  87,  91-92,  155. 

Establish,  meaning  of,  in  postal 
clause,  81. 

Exclusions  from  mails,  and  free- 
dom of  press,  114;  as  denying 
due  process  of  law,  178  ff. 

Expansion  of  postal  facilities, 
26-33. 

Extension  of  federal  control 
over  postroads,  150;  through 
exclusions  from  the  mails, 
158  ff. 

Fairbanks,  Richard,  n. 

Farrar,  E.  H.,  154. 

Federal  aid  for  national  but  not 
local  purposes,  95. 

Federal  control,  extension  of, 
through  exclusion  from  the 
mails,  159;  under  taxing  and 
commercial  powers,  168-171. 

Federal  incorporation  of  rail- 
roads, 152;  of  trading  com- 
panies, 179. 

Federalist,  The,  g,  10,  65. 

First  Amendment  to  Constitu- 
tion, 98  ff. 


Fourth  Amendment  to  Constitu- 
tion, 123  ff. 

Franking  privileges,  14,  20. 

Franklin,  Benjamin,  12-15,  23. 

Fraud  orders,  56-60. 

Freedom  of  press,  98-123 ;  mean- 
ing of  constitutional  guaran- 
tee, 100  ff. ;  abridged  by  pre- 
venting circulation,  103;  and 
exclusions  from  mails,  158, 
163. 

Freight  trains  on  Sunday,  130. 

Freund,  Ernst,  129  n.,  159. 

Gallatin,  Albert,  63  ff.,  82. 
Gambling  contracts,  163. 
Gerry,  Elbridge,  98. 
Goddard,  William,  13. 
Good    roads,    congressional    aid 

for,  34,  80. 
Goodnow,  F.  J.,  180. 
Gouverneur,  Samuel  L.,  104,  138. 
Granger,  Gideon,  27  n. 
Grote,  George,  180. 

Hadley,  Arthur  T.,  26. 
Hamilton,  Alexander,  99. 
Heisler,  R.  C,  179. 
Holt,  Postmaster  General,  143. 

Incendiary  publications,  by  north- 
ern abolitionists,  103  ff. ;  power 
of  Congress  to  exclude  from 
mails,  107  ff. ;  power  of  state 
to  punish  officials  disseminat- 
ing, 136  ff. 

Index  Expurgatorius,  postal,  39, 
158;  commercial,  170. 

Internal  improvements,  28,  61. 

Interstate  commerce,  power  of 
Congress  over,  127 ;  analogy  to 
postal  power,  128;  power  of 
states  to  exclude,  145;  exclu- 
sion from,  of  articles  made  by 
children,  170  ff. 

Intoxicating  liquors,  excluded 
from  mails,  40 ;  interstate  com- 
merce in,  and  police  power  of 
the  states,  127. 

Jackson,  Andrew,  78  ff.,  103. 
Jay,  Chief  Justice,  62. 
Jefferson,  Thomas,  62  ff. 
Johnson,  Justice,  81. 
Jones,  Samuel,  25. 


INDEX 


I87 


Judicial  review  of  fraud  orders, 
58  ff. 

Jurisdiction  to  try  offence  of 
depositing  non-mailable  mat- 
ter, 53. 

Kendall,  Amos,  104  ff.,  137  ff. 
Kent,  Chancellor,  42. 
Kenyon,  Lord,  100. 
King,  William  R.,  106. 

Lacey  Game  Act,  127  n. 

Lee,  Richard  Henry,  14. 

Letter  carrier  routes,  in  cities  as 
postroads,  4.3,  93. 

Libelous  publications,  159. 

Limitations  on  postal  power,  97, 
158. 

Lottery  advertisements  and  free- 
dom of  press,  116. 

Lottery  tickets,  excluded  from 
mails,  52,  146;  in  interstate 
commerce,  169,  174  ff. 

Lovelace,  Francis,  12. 

McCray  Case,  169. 

McLean,  Justice,  89. 

Madison,  James,  9,  62, 65  ff.,  100. 

Mail  matter  relating  to  current 
business  of  carrier,  44. 

Mails,  interference  with,  10; 
safety  of,  19;  right  of  Con- 
gress to  compel  transportation 
by  railroads,  29,  151 ;  classifi- 
cation of,  30;  what  constitutes 
obstruction  of,  46;  exclusions 
from,  47  ff. ;  use  of,  to  de- 
fraud, 56  ff. ;  exclusion  from, 
to  extend  federal  control,  I5&- 
180. 

Mala  prohibita  and  mala  in  se, 
54,  135,  148. 

Mann  White  Slave  Act,  170. 

Marketing  by  parcel  post,  34. 

Marshall,  Chief  Justice,  36,  81, 
136  n.,  153,  154,  169  n.,  177. 

Marshall,  Louis,  172  n. 

Maryland,  Sunday  observance  in, 
131- 

Mercury   (Charleston),  104. 

Money  orders,  31. 

Monroe,  James,  27,  69;  "Views 
on  Internal  Improvements," 

74  ff. 

Moon,  J.  A.,  32. 
Morris,  Gouverneur,  24. 


Morris,  Thomas,  112. 
Municipal  streets  and  postroads, 
150. 

Neale,  Thomas,  12. 
Nelson,  E.  C,  65,  77  n. 
Newlands,  Senator,  161  n. 
Newspaper    Publicity   Law,    121 

ff.,  164,  175. 

Northern  Pacific  Railroad,  91. 
"  Nullification    by    Indirection," 

169  ff. 

Obscene  literature,  in  mails,  48, 
146,  174;  definition  of,  49;  in 
interstate  commerce,  170. 

Obstruction  of  the  mail,  45  ff. ; 
what  constitutes,  135. 

Ohio,  admission  as  state  and 
Cumberland  Road  compact,  63. 

Oleomargarine  in  interstate  com- 
merce and  state  laws,  127; 
federal  tax  on  manufacture 
of,  168. 

Ordinance  of   1782,   17-20,  36. 

Original  packages,  146. 

Panama  Canal  Act,  161. 

Parcels  post,  30,  34. 

Paterson,  William,  22. 

Paterson's  plan  for  Constitu- 
tion, 41. 

Penn,  William,  12. 

Penrose,  Boies,  51  n. 

Pinckney,  C.  C.,  98. 

Pinckney's  plan,  22,  98. 

Police  regulations  by  Congress 
concerning  postoffice,  52. 

Postal  clause,  in  Articles  of 
Confederation,  16;  discussion 
of,  by  constitutional  conven- 
tion, 22 ;  in  Constitution,  23 ; 
poor  expression  of,  25. 

Postal  crimes,  severely  punished, 
37;  obstructing  the  mail,  37; 
private  competition,  37 ;  rob- 
bing the  mail,  38;  meticulous 
enumeration  in  federal  crimi- 
nal code,  39;  articles  ex- 
cluded, 40 ;  constitutionality  of 
laws,  40  ff. 

Postal  facilities,  recognized  func- 
tion of  state,  ii ;  beginnings 
of,  in  America,  12;  govern- 
mental monopoly  of,  14;  im- 
portance of,  26;  in  New  Zea- 


i88 


INDEX 


land,  33,  36;  denial  of,  to  ob- 
jectionable stock  exchanges, 
162  ff, ;  to  insurance  com- 
panies, 164. 

Postal  laws,  codification  of,  60. 

Postal  monopoly,  power  of  Con- 
gress to  establish,  41. 

Postal  power  of  Congress,  an- 
tecedents of,  9-26;  importance 
underestimated,  1 1 ;  granted  by 
Articles  of  Confederation,  16; 
by  Constitution,  23 ;  and  free- 
dom of  press,  98,  163 ;  limited 
by  Fourth  Amendment,  123 ; 
may  not  deny  due  process  of 
law,  178;  and  police  power  of 
the  states,  127  ff. ;  as  a  means 
of  extending  federal  control, 
158  ff. 

Postal  savings  banks,  constitu- 
tionality of,  32. 

Postal  telegraphs  and  tele- 
phones, 156-157. 

Postmaster  general,  office  of,  for 
America  created,  12;  Franklin 
appointed,  14;  duties  of,  18; 
salary  increased,  28;  made 
member  of  Cabinet,  28. 

Postoffice,  American,  extension 
of  functions,  10;  under  Arti- 
cles of  Confederation,  17-22; 
temporary  establishment  by 
Congress,  26;  expansion  of 
power  of  Congress  to  estab- 
lish, 26  ff. ;  collectivist  activi- 
ties, 33. 

Postoffice,  British,  service  in 
colonies,  14. 

Postoffice  employees,  exemption 
from  military  duties,  15 ;  pun- 
ishment by  state  for  perform- 
ing federal  duty,  136  ff. 

Postroads,  power  of  Congress 
to  establish,  10,  61  ff.;  to  ap- 
propriate for,  but  not  con- 
struct, 72;  power  of  states 
over,  84  ff. 

Power  of  states  to  delay  car- 
riage of  mails,  131  ff. 

Presbyterian  Church,  127. 

Press,  freedom  of,  54,  98  ff.,  103, 
158,  163. 

Preston,  William  C,  106. 

Princeton,  robbery  of  mail  at,  20. 


Prize  fights,  moving  picture 
films  of,  158. 

Publicity  of  corporate  affairs, 
161. 

Publishers  granted  special  pos- 
tal rates,  29. 

Pujo  Money  Trust  Committee, 
162,  172  ff. 

Questione  Sociale,  La,  118  ff. 

Railroads,  federal  incorpora- 
tion of,  10,  94;  subsidies  to, 
for  carrying  mails,  28  ff . ;  in 
Alaska,  80;  as  postroutes,  92. 

Receipt  of  mail  matter,  power 
of  state  to  forbid,  145  ff. 

Religious  freedom,  159. 

Republican  form  of  govern- 
ment, guarantee  to  state  of, 
144- 

Right  to  use  the  mails,  52,  112, 
178  ff. 

Road  construction  and  transpor- 
tation of  mails,  61  ff. 

Roosevelt,  Theodore,  51  n.,  118, 
150. 

Rural  free  delivery,  34. 

Schofield,  Henry,  101  n.,  102, 
117  n. 

Schroeder,  Theodore,  51  n. 

Searches  and  seizures,  unrea- 
sonable, 123  ff. 

Sealed  letters  and  packages,  not 
open  to  inspection,  124  ff. 

Second  class  privileges,  121, 
164  ff. 

Secretary  of  agriculture,  34. 

Secretary  of  labor,  35. 

Sedition,  power  of  Congress  to 
punish,  103,  107;  constitution- 
ality of  sedition  act,  107. 

Semple,  James,  85. 

Sherman,  Roger,  23,  98. 

Sherman  Act,  161. 

Southern  Patriot  (Charleston), 
104. 

State  bank  notes,  tax  on,  168. 

State  laws  preventing  circula- 
tion of  incendiary  matter,  104. 

States,  consent  of,  for  construc- 
tion of  postroads,  72,  82;  au- 
thority of,  over  postroads,  96; 
power  of,  to  interfere  with  the 
mails,  127  ff. 


INDEX 


189 


Stock    exchanges,    incorporation 

of,  162  ff. 
Story,  Joseph,  9,  10,  81  n.,  99  n., 

108. 

Sunday  mails,  128  ff. 
Sunday  observance  laws,  130. 

Taft,  President,  165  n. 

Taney,  Chief  Justice,  88,  91,  134. 

Tappan,  Arthur,  104. 

Taxation  for  purposes  of  regu- 
lation, 1 68. 

Taxing  power  of  Congress,  160. 

Taylor,  Hannis,  55,  97. 

Telegraphs,  federal  ownership  of 
systems,  10,  156. 

Telephones,  federal  ownership 
of,  10,  156. 

Tolls,  right  of  state  to  charge 
mail  carriers,  136  ff. 

Tonnage  duties,  61. 

Tucker,  John  Randolph,  108, 
142. 

Unemployment  bureaus  and  the 
postoffice,  35. 

Unmailable  matter,  47  ff. ;  large 
packages,  47;  articles  likely  to 
damage  mail,  47;  intoxicants, 
48;  obscene  matter,  48;  show- 


ing defamatory  language,  50; 

lottery  tickets,  52;  fraudulent 

matter,  56. 

Untermyer,  Samuel,  172  n. 
Use  of  mails  as  crime  against 

state,  146  ff. 
Use    of    mails    as    privilege    or 

right,  173. 

Van  Buren,  Martin,  74. 
Von  Hoist,  H.  E.,  75,  95,  97. 

Wakeman,  T.  B.,  51  n. 
Washington,  George,  62. 
Webb-Kenyon   Act,    113   n.,    127 

n.,  146  n.,  148. 
West  Virginia   prohibition   law, 

147. 

White,  Chief  Justice,  165. 
Wickersham,  Geo.  W,  44. 
Willoughby,  W.  W.,  159,  170. 
Wilson,  James,  23. 
Wilson,  Secretary,  35. 
Wilson,  Woodrow,  180. 
Wilson  Act,  127  n. 
Wise,  Governor,  142. 
Working  on  Sunday,  state  laws 

to  punish,  130. 

Young,  J.  S.,  62  n.,  77  n. 


VITA 

Lindsay  Rogers  was  born  in  Baltimore  on  May  23,  1891. 
He  attended  the  public  schools,  studied  under  private  tutors, 
and  received  the  degree  of  Bachelor  of  Arts  from  the  Johns 
Hopkins  University  in  1912.  He  then  began  graduate 
work  in  Political  Science  under  the  direction  of  Professor 
Willoughby,  with  Private  Law  (LL.B.,  University  of 
Maryland  1915)  and  Political  Economy  as  subordinate  sub- 
jects. He  was  a  University  Fellow,  1914-1915,  and  was 
admitted  to  the  Maryland  Bar  in  1915.  Since  1909  he  has 
done  considerable  newspaper  work. 


191 


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